IRARY 

,  Y  OF 

I  DILGO 


J 


(f,'i,vc^tl;7fc^  i^wj-  y-"^'^ 


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By    FRANIV   J.   GOODNOW 

Eaton  Professor  of  Administrative  Law  and  Municipal 
Science  in  Columbia  University 


Comparative 
Administrative  Law 

An  Analysis  of  the  Administrative  Systems, 

National  and  Local,  of  the  United 

States,  England,  France, 

and  Germany 

Student's  Edition 

Two  Vols,  in  One  Octavo 

The  Principles  of  the  Adminis- 
trative Law  of  the 
United  States 
Octavo  -        .        .        . 


Q.  P.  Putnam's  Sons 

N«w  York  Loadoa 


The  Principles 


OF  THE 


Administrative  Law 


OF  THE 


United  States 


BY 

FRANK  J.  GOODNOW,  LL.D. 

KATON    PROFESSOR   OF   ADMINISTRATIVE    LAW   AND   MUNICIPAL  SCIENCE   IN 
COLUMBIA    UNIVERSITY 


G.  P.  PUTNAM'S  SONS 
NEW   YORK  AND    LONDON 

ITbe  IknickerbocMer  iPress 


Copyright,  1905 

BY 

FRANK  J.  GOODNOW 
Printed  in  the  United  States  of  America 


y1^^ 


PREFACE. 

Some  twelve  years  ago,  the  writer  of  the  following 
pages  ventured  to  submit  to  those  interested  in  the 
study  of  political  subjects  a  book  entitled  Compara- 
tive Administrative  Law. 

The  great  interest  in  administrative  subjects,  which 
is  now  so  manifest  in  this  country,  has  led  him  since 
to  believe  that  a  fuller  treatment  of  American  ad- 
ministrative conditions  than  was  possible  in  a  book 
devoted  to  a  comparison  of  different  administrative 
systems  was  desirable.  This  has  been  his  excuse  for 
preparing  this  work.  The  plan  adopted  in  his  Com- 
parative Administrative  Law  is  the  one  which  is 
here  followed.  In  a  number  of  instances,  further, 
the  language  which  was  used  in  the  former  work  has 
been  retained.  In  the  main,  however,  the  portions 
of  Comparative  Administrative  Law  dealing  with 
American  conditions  have  been  greatly  amplified,  if 
not  absolutely  rewritten.  In  a  number  of  instances, 
where  the  plan  adopted  has  involved  a  rather  techni- 
cal presentation  of  the  subject,  the  author  has  deemed 
it  wise  to  state  the  law  in  the  words  of  text-writers  of 
acknowledged  authority.  He  has  thus  been  greatly 
indebted  in  this,  as  in  the  former  work,  to  Professor 
Floyd  R.  Mechem,  whose  excellent  treatise  on  The 
Law  of  Public  Officers  has  been  of  the  greatest  use. 

iii 


iv  PREFACE. 

It  is  the  hope  of  the  author  that  the  book  now 
presented  to  students  of  poHtics  will  soon  be  followed 
by  one  consisting  of  cases  illustrative  of  American 
administrative  law,  to  be  arranged  in  the  same  order 
as  the  one  here  adopted.  Such  a  case  book  he  feels 
would  be  of  the  greatest  service  in  illustrating  the 
conditions  which  are  encountered  by  administrative 
officers,  and  thus  bringing  in  concrete  shape  before 
the  student's  eyes  the  problems  which  he  is  studying. 

Frank  J.  Goodnow. 

Columbia  University, 
August,  1905. 


TABLE  OF  CONTENTS. 


V 


BOOK  I.     THE  SEPARATION  OF  POWERS. 

PAGE 

CHAPTER  I.     ADMINISTRATION  .         ..       i 

CHAPTER  II.     ADMINISTRATIVE  LAW. 

I.  Administrative  organization 17 

II.  Powers  and  duties  of  administrative  officers         .         .         .18 

CHAPTER  III.  THE  THEORY  OF  THE  SEPARATION  OP 

POWERS. 

I.  Executive  functions  of  the  legislature  .....       28 
II.  Legislative  functions  of  the  executive  authority  ...       29 

CHAPTER  IV.     THE  THEORY  OF  THE  SEPARATION  OF 
POWERS  IN  THE  UNITED  STATES. 

I.  The  theory  a  part  of  the  American  public  law     .         .         .31 
II.  The  meaning  of  the  rule  in  American  law    •         ...       33 

CHAPTER  V.     THE  RELATION  OF  THE  EXECUTIVE  TO  THE 

OTHER  AUTHORITIES. 

I.  Relation  to  the  legislature   .......       43 

1.  The  legislature  the  regulator  of  the  administration      .       43 

2.  The  control  of  the  legislature        .....       48 

II.  Relation  to  the  courts  .......       48  1  / 

1.  Political  acts        ........       49 

2.  Non-political  acts         .......       49 

ist.  Legislative  acts  ......       49 

2d.   Contractual  acts         ......       50 

3d.   Administrative  acts  of  special  application        .       50 
III.  The  position  of  the  executive       .         .         .         .         .         -Si 

V 


vi  TABLE  OF  CONTENTS. 

CHAPTER  VI.     TERRITORIAL  DISTRIBUTION  OF  ADMINIS- 
TRATIVE FUNCTIONS. 

PAGB 

I.   Participation  of  local  communities  in  administration  .       55 

II.  The  Anglo-American  method  for  providing  for  the  participa- 
tion of  the  local  communities  in  the  work  of  ad- 
ministration .......       59 

III,  Sphere  of  central  administration  .....       62 

BOOK  II.     CENTRAL  ADMINISTRATION. 

CHAPTER  I.     THE  EXECUTIVE  POWER  AND  THE  CHIEF 
EXECUTIVE  AUTHORITY       ...       64 

CHAPTER  II.     THE  AMERICAN  CONCEPTION  OF  THE  EX- 
ECUTIVE POWER  IN  THE  LATTER  PART  OF 
THE  EIGHTEENTH  CENTURY. 


I.  As  exemplified  by  the  early  state  governments 
II.  As  exemplified  by  the  position  of  the  President 

1.  Original  position  of  the  President 

2.  Change  in  the  position  of  the  President 

3.  Power  of  direction        .... 


70 
73 
73 

75 
77 


CHAPTER  III.     THE  ORGANIZATION  OF  THE  CHIEF  EX- 
ECUTIVE AUTHORITY  IN  THE  UNITED  STATES. 

I.  The  President       .........       83 

1.  Administrative  powers  ......       84 

ist.  The  ordinance  power  of  the  President        .  .        84 

2d.    Power  to   perform   special    acts    of    individual 

application         .......       89 

2.  Remedies  against  the  action  of  the  President       .         .       91 
II.  The  state  governor       .  .  .  .  .  .  .  .94 

1.  The  governor  a  political  officer 94 

2.  Administrative  powers  .  .  .  .  .  .98 

I  St.  Power  of  appointment        .....       98 

2d.    Power  of  removal       .  .  ,  .  .  .101 

3d.    Power  of  direction     .  .  .  .  .  .104 

4th.  The  governor's  power  over  the  administrative 

services      .  .  .  .  .  .  ,  .104 

3.  General  position  of  the  governor  .  .  .  .106 

4.  Remedies  against  the  action  of  the  governor        .         .108 


TABLE  OF  CONTENTS.  vii 

CHAPTER   IV.     THE  SENATE  AS  AN  EXECUTIVE   COUNCIL 

PAGE 

I.  The  national  government     .         .         .         .         .         .         .     iii 

II.  The  state  governments         .         .         .         .         .         .         .116 

CHAPTER  V.     METHODS  OF  ORGANIZING  THE  EXECUTIVE 

DEPARTMENTS. 

I.  Methods  of  distributing  business  .         .         .         .         .119 

II.  Power  of  organization  .  .  .  .  .  .  .122 

CHAPTER  VI.  TERM  AND  TENURE  OF  THE  HEADS  OF 

DEPARTMENTS    .    .    .    .129 

CHAPTER  VII.  POWERS  AND  DUTIES  OF  HEADS  OF 

DEPARTMENTS. 


I.  The  power  of  appointment 


II.  The  power  of  removal 

III.  The  power  of  direction  and  supervision 

IV.  The  ordinance  power   .... 
V.  Special  acts  of  individual  application  . 

VI.  Remedies     ...... 


134 

135 
136 

143 

145 
149 


CHAPTER  VIII.     ORGANIZATION  OF  THE  EXECUTIVE 

DEPARTMENTS. 

I.  National  government  .         .         .         .         .         .         .         .15° 

II.  The  state  governments  .  .  .  .  .  .  .      i54 

III.  Local  subordinates  of  the  executive  departments         .         .160 

BOOK  III.     LOCAL  ADMINISTRATION. 

CHAPTER  I.     LOCAL  CORPORATIONS  IN  THE  UNITED 

STATES. 

I.  Corporate  capacity  of  local  areas  .  .  .  .  .162 

II.  Subjection  of  the  local  corporations  to  the  control  of  the 

legislature     .  .  .  .  .         .         .         .168 

1.  Local    corporations    are    authorities    of    enumerated 

powers  .  .  .  .  .  .  .168 

2.  Legislative  control  of  local  corporations       .         .         .169 

3.  Constitutional  limitation  of  legislative  control     .  .172 

ist.  What  is  a  special  act?         .  .  .  .         ,174 

2d.    What  are  local  affairs?       .         .         .         .  176 


vm 


TABLE  OF  CONTENTS. 


CHAPTER  II.     HISTORY  OF  RURAL  LOCAL  ADMINISTRA- 
TION IN  THE  UNITED  STATES. 


I.  History  of  rural  administration  in   England  to  the    i8th 
century      ....... 

1.  The  sheriff  ....... 

2.  The  justice  of  the  peace       .... 
II.  The  development  of  the  system  in  the  United  States 

1.  The  three  original  forms  of  local  administration 

2.  The  early  American  county 

3.  The  early  American  town     .... 


PAGE 

179 
179 
180 
182 
182 
184 
186 


CHAPTER  III.     RURAL  LOCAL  ADMINISTRATION  IN  THE 
UNITED  STATES  AT  THE  PRESENT  TIME. 


I.  The  county 

1 .  The  position  of  the  county 

2.  The  county  authority  . 

3.  State  control  over  counties 
II.  The  town     .... 

1.  The  position  of  the  town 

2.  The  town  meeting 

3 


The  town  officers 


189 
189 
190 
194 

195 
195 
196 
196 


CHAPTER  IV. 


MUNICIPAL  ORGANIZATION  IN  THE  UNITED 
STATES. 


I.  History  of  the  English  municipality  to  the  seventeenth  and 
eighteenth  centuries 

1.  Origin  of  the  borough 

2.  Development  of  the  borough  council 

3.  Period  of  incorporation 
II.   History  of  the  American  municipality 

1.  The  original  American  municipality 

2.  Change  in  the  position  of  the  city 
III.   Change  in  municipal  organization 

1.  The    application    to    municipal    organization    of    the 

principle  of  the  separation  of  powers 

2.  The  board  system 

3.  The  mayor  system 

4.  Loss  of  power  by  council 
IV.  The  present  organization 

1.  The  council  type  of  city  government 

2.  The  board  type    .... 

3.  The  mayor  type  .... 

4.  Terms  of  city  officers   . 

5.  City  schools  .... 


199 
199 
201 
202 
205 
205 
208 
212 

212 
214 
215 

216 
216 
216 
217 

218 

219 


TABLE  OF  CONTENTS. 


IX 


PAGE 

V.  Villages        .         .         .         .         .         .         .         .         .         .219 

1.  General  position  .         .         .         .         .         .         .         .219 

1.  The  village  organization       .         .         .         .         .         .221 

BOOK  IV.     THE  OFFICIAL  RELATION. 


CHAPTER  I.     OFFICES  AND  OFFICERS. 

I.  Definition     .         .         .         .         .         .         .         .         .  .222 

II.  Methods  of  organizing  offices        .         .         .         .         .  .225 

III.  Honorary  and  professional  offices         .         .         .         .  .227 


CHAPTER  II. 


THE  FORMATION  OF  THE  OFFICIAL 
RELATION. 


I.  Appointment  or  election       .... 
II.  The  law  of  elections     ..... 

1.  Right  of  legislature  to  regulate  elections 

2.  Method  of  voting  .... 

3.  Election  regulations  directory 

4.  Duties  of  election  officers  ministerial   . 

5.  Methods  of  representation    . 

III.  The  law  of  nominations        .... 

1.  Parties  originally  voluntary  organizations 

2.  Governmental  control  of  parties 

3.  Direct  nomination 

4.  Effect  of  Australian  ballot 

IV.  The  law  of  appointment 
V.  Acceptance  of  the  office 

VI.  Officers  de  facto    . 


CHAPTER  III.     QUALIFICATIONS  FOR  OFFICE. 

I.  The  legislature  may  provide  qualifications  . 
II.  Usual  qualifications      ..... 

1.  Citizenship  and  residence 

2.  Age 

3.  Character     ...... 

4.  Eligibility  of  women     .... 
III.  Qualification  of  intellectual  capacity    . 

1 .  Original  discretion  of  appointing  officers 

2.  Civil-service  laws  .... 

3.  Classification  of  civil  service 

4.  Exempted  positions     .... 

5.  Laborers       ...... 

6.  Civil-service  examinations   .  .  , 

7.  Civil-service  commission 


231 

234 
234 
236 

239 
240 
242 

243 

243 

245 
249 

251 
253 
255 
257 


260 
261 
261 
262 
263 
263 
264 
265 
266 
269 
270 
271 
272 
279 


^/ 


X  TABLE  OF  CONTENTS. 

CHAPTER  IV.     THE  RIGHTS  OF  OFFICERS. 

PAGB 

I  Right  to  the  office        . 282 

11.  Special  protection         .  .  .  .  .  .         .  .283 

III.  Promotions  .........     285 

IV.  Compensation       .........     280 

1.  Not  a  contractual  right        .         .         .         .         .         .286 

2.  How  enforced       .         .         .         .         .         .         .         .289 

3.  Civil  pensions       ........     290 

CHAPTER  V.     THE  DUTIES  OF  OFFICERS. 

I.  Ministerial  and  discretionary  duties     .         .         .         .         .295 
II.  Duties  with  a  penal  sanction         ......     298 

1.  Common-law  crimes  of  officers     .  .  .  .  .298 

2.  Statutory  official  crimes        .  .  .  .  .         .299 

III.  Duties  of  a  moral  character  .  .  .  .  .  -299 

1.  Obedience  to  orders      .  .  .  .  .  .  .300 

2.  Prompt  performance  of  the  duties  connected  with  the 

office     .........     300 

3.  Good  conduct       .  .  .  .  .  .  .  .301 

IV.  Responsibility  of  officers  for  violation  of  duty      .  .  .     302 

CHAPTER  VI.     TERMINATION  OF  THE  OFFICIAL  RELATION. 


I.  Expiration  of  the  term         .         .         .         . 

•     305 

II.   Resignation           ..... 

.     307 

III.   Loss  of  qualifications  .... 

.     309 

IV.  Removal  from  office     .... 

.     311 

V.  Legislative  action         .... 

•     315 

BOOK  V.     METHODS  AND  FORMS  OF  ADMINISTRA- 
TIVE ACTION. 

CHAPTER  I.     DISTINCTION  OF  THE  METHODS  FROM  THE 
DIRECTIONS  OF  ADMINISTRATIVE  ACTION       .     316 


CHAPTER  II.     THE  EXPRESSION  OF  THE  WILL  OF  THE 

STATE. 

I.  Unconditional  statutes  .         .  .  .  .  .  .322 

II.  Conditional  statutes  .  .  .  .  .  .  .325 

1.  Administrative  ordinances   .  .  .  .  .  .326 

2.  Special  administrative  acts  .  .  .  .  .  >     iZ^ 

3.  Procedure  to  be  followed     .  .  .  .  .  ,340 


TABLE  OF  CONTENTS. 


XI 


CHAPTER  III.    EXECUTION  OF  THE  WILL  OF  THE  STATE. 

PAGB 

I.  Means  of  execution      .         ,         .         .         .         .         .         .346 

1.  Imposition  of  penalties         .         .         .         .         .         .346 

2.  Enforced  performance  of  the  act  ordered     .         .  -348 

ist.  Execution  of  the  law  by  the  payment  of  a  sum 

of  money  ........     349 

2d.  Application  of  physical  force      .         .         .         .350 

II.  Methods  of  execution  .         .         .         .         .         .         .         -351 

1.  Judicial  process'  ........     352 

2.  Summary  administrative  proceedings  .         .         .356 

BOOK  VI.     CONTROL  OVER  THE  ADMINISTRATION. 

Division  I.     Methods  of  Control. 

CHAPTER  I.     NECESSITY  OF  CONTROL  .     367 

CHAPTER  II.     INTERESTS  TO  BE  REGARDED    .     370 

CHAPTER  III.     KINDS  OF  CONTROL  AND   PARTICULARLY 
THE  ADMINISTRATIVE  CONTROL. 


I. 

The  administrative  control 

•     373 

I.  The  disciplinary  power 

•     374 

2.  Power  of  direction        .... 

.     375 

3.  Power  of  supervision    ... 

•     375 

II. 

The  judicial  control      ..... 

.     376 

III. 

Legislative  control 

.     377 

Division  II.     The  Judicial  Control. 

CHAPTER  I.     ANALYSIS  OF  THE  JUDICIAL  CONTROL. 

I.  Use  of  ordinary  judicial  institutions     .....     378 

II.  Special  judicial  remedies       .......     380 

III.  Kinds  of  judicial  control      .......     381 


I. 


CHAPTER  II.  CONTROL  OF  THE  CIVIL  COURTS. 


Suits  by  or  against  the  government 

Suits  by  the  government  against  individuals 
Suits  against  local  corporations    . 
Suits  against  the  central  government  . 

I  St.  The  national  government  . 

2d.   The  state  governments 
Suits  indirectly  against  the  government 


I. 
2. 
3- 


383 
384 

385 
386 

387 
390 
392 


XII 


TABLE  OF  CONTENTS. 


II.  Execution  of  the  law  by  judicial  process 
III.  Suits  for  damages  against  officers 

1.  Chief  executive  not  liable  in  damages 

2.  Heads  of  executive  departments  not  liable 

3.  Liability  of  judges        .... 

4.  Liability  of  ministerial  officers 

5.  Liability  for  negligence 

6.  Liability  of  officers  for  acts  of  subordinates 


PAGE 

394 
396 

398 

399 

400 
401 
402 
407 


CHAPTER  III.     CONTROL  OF  THE  CRIMINAL  COURTS. 

I.  Control  of  the  courts  over  the  prosecution  of  individuals  .     409 
II.  Power  of  the  criminal  courts  to  punish  officials.     Method 

of  prosecution       .         .         .         .         .         .         .411 

CHAPTER  IV.     EXTRAORDINARY  JUDICIAL  REMEDIES. 


I.  Necessity  of  peculiar  judicial  remedies 
II.   History  of  the  English  method     . 

1.  History  to  the  beginning  of  the  eighteenth  century 

2.  History  in  the  United  States 

III.  The  present  jurisdiction  of  the  higher  courts 

1.  The  special  remedies    .... 

2.  Prerogative  character  of  the  writs 

3.  The  purpose  of  the  writs 

4.  Questions  considered  on  the  writs 

5.  Distinction  between  legal  and  equitable  remedies 

6.  Jurisdiction  of  the  United  States  courts 

IV.  Special  and  statutory  jurisdiction  of  the  lower  courts 

Division  III.     The  Legislative  Control. 


418 
420 
420 
426 
427 
427 
429 

431 
432 
436 

437 
440 


CHAPTER  I.     HISTORY  OF  THE  LEGISLATIVE  CONTROL.  442 

CHAPTER  II.     THE  POWER  OF  THE  LEGISLATURE  TO 
REMEDY  SPECIAL  ADMINISTRATIVE  ABUSES    .     445 

CHAPTER  III.     THE  LEGISLATIVE  CONTROL  OF  THE 

FINANCES. 

I.  Control  over  receipts    ........     449 

II.  Control  over  expenses .  .         .         .         .         .         .451 

III.  Examination  of  accounts     .         .         .         .         .         .         .456 

CHAPTER  IV.     IMPEACHMENT  .         .458 

List  of  Authorities 465 

Index        .        .  ........     469 


TABLE  OF  CASES  CITED. 


Abeel  v.  Clark,  84  Cal.,  226 

Ablemanv.  Booth,  21  Howard,  506 

Achley's  Case,  4  Abbott's  Pr.,  35  .         .         • 

Ah  You,  In  re,  88  Cal.,  99  . 

American  School  of  Magnetic  Healing  v.  Mc Annuity, 

94 

Amyv.  The  Supervisors,  11  Wallace,  136    . 
Anderson  v.  Dunn,  6  Wheaton,  204     . 
Antoni  v.  Greenhow,  107  U.  S.,  769 
Attorney-General  v.  Barstow,  4  Wisconsin,  567     . 

V.  Board  of  Councilmen  of  Detroit, 

213 

V.  Boston,  123  Mass.,  460  . 

V.  Common  Council,  78  Mich.,  545 

V.  Drohan,  169  Mass.,  534 

V.  Marston,  66  N.  H.,  485 

V.  Oakman,  126  Mich.,  717 

V.  Squires,  14  Cal.,  12 

Auditor-General  v.  Pullman  Company,  34  Mich.,  59 

i4MgM5to  V.  Sweeny,  44  Ga.,  463  . 

Badger  v.  United  States,  93  U.  S.,  599 

Bailey  v.  Mayor,  3  Hill  (N.  Y.),  531    . 

Bancroft  v.  Dumas,  21  Vermont,  456  . 

Bank  V.  Herald,  74  Cal.,  603 

Bank  of  Kentucky  v.  Wister,  2  Peters,  318 

Barbour  v.  United  States,  17  Ct.  of  Claims,  149 

Barclay  v.  Commonwealth,  25  Pa.  St.,  503 

Barhyte  v.  Sheperd,  35  N.  Y.,  238 

Barry,  Ex  parte,  2  Howard,  65    . 

5ario  V.  Himrod,  8  N.  Y.,  483     . 

Bates  &  Guild  Company  v.  Payne,  194  U.  S.,  106 

Baton  Rouge  v.  Dearing,  15  La.  Ann.,  208 

Beardsley  v.  Smith,  16  Conn.,  368 

B^er  Company  v.  Massachusetts,  97  U.  S.,  25 


PAGE 

.  361 

440 

38 

347 

187  * 

U.S. 

149 
406 
446 
454 

108,  435 

*58  1 

Vlich., 

260,  341 

.  432 

.  236 

.  244 

•  3" 

III 

•  315 

36,  38 

•  315 

.  30b,  309 

.  386 

•   37 

406 

.  390 

.  308 

•  365 

.    •  336 

■   439 

42 

.   148, 339 

•   37 

164 

.   361 

XUl 


XIV 


TABLE  OF  CASES  CITED. 


Bell  V.  Hearne,  19  Howard,  252 
Bergen  v.  Clarkson,  6N.J.  L.,352 
Biddle  v.  Willard,  10  Ind.,  62 
Binninger,  In  re,  7  Blatchford,  159 
Bishop  V.  State,  149  Ind.,  223      . 

V.  Williamson,  11  Me.,  495 

Blake  V.  United  States,  14  Court  of  Claims,  462 
Bliss  V.  Lawrence,  58  N.  Y.,  442 
Bloomfield  v.  Charter  Oak  Bank,  121  U.  S.,  121 
Board  of  Freeholders  v.  Buck,  51  N.  J.  L.,  155 
Board  of  Liquidation  v.  McComb,  92  U.  S.,  531 
Bonner  v.  United  States,  9  Wallace,  158 
Boske  V.  Comingore,  177  U.  S.,  459 
Bowditch  V.  Boston,  loi  U.  S.,  16 
Boyd  V.  Mills,  53  Kansas,  594     . 
Bradley  v.  Fisher,  13  Wallace,  335 
Breiswick  v.  Brunswick,  51  Ga.,  639    . 
Brewer  v.  Davis,  9  Humphrey  (Tenn.),  208 
V.  Kidd,  23  Mich.,  440 


Bristol  Door  <Sf  Lumber  Company  v.  Cify  0/ 
Britton  v.  Board,  129  Cal.,  337     . 
Brooklyn  v.  Scholes,  31  Hun.  (N.  Y.),  no 
Brown's  Case,  6  Court  of  Claims,  171. 
Brown  v.  Haywood,  4  Heiskell  (Tenn.),  357 

V.  Russell,  166  Mass.,  14  . 

V.  Turner,  70  N.  C,  93 

Bubb's  Case,  4  Comp.  Dec,  40     . 
Buchanan  v.  Alexander,  4  How.,  U.  S.,  20 
Bunting  v.  Gales,  77  N.  C,  283    . 

Burch  V.  Hardwicke,  23  Grattan  (Va.),  51 
Burgess  v.  Pw^,  2  Gill.  (Md.),  11 
Burnham  v.  Morrissey,  14  Gray,  226  . 
BMri  V.  Railway  Company,  31  Minn.,  472 
Butler  V.  Pennsylvania,  10  How.  U.  S.,  402 
Butterworth  v.  //o^,  112  U.  S.,  50 

V.  United  States,  112  U.  S.,  50 

Buttfield  V.  Stranahan,  192  U.  S.,  470 
Ca/ia  V.  United  States,  152  U.  S.,  211 
Cax'w  V.  Page,  42  S.  W.  Rep.,  336 
Colder  v.  5u//,  3  Dallas,  386 
Callen  v.  Junction  City,  43  Kan.,  627 


Campbell  v.  United  States,  107  U.  S. 
Capen  v.  Foster,  12  Pickering,  485 
Carr  v.  Gordon,  82  Fed.  Rep.,  373 

V.  Phillips,  39  Mich.,  319     . 

Cory  V.  Curtis,  3  Howard,  236     . 


407 


Bristol,  97 


PAGB 

91,  146 

354 
308 

439 
3" 
407 
308 
289 
164 
176 

393 
387 
85 
365 
239 
400,  405 

347 
239 
440 

Va.,  304  .  362 
248,  249 
256 

399 
260 

279 
6,  223 

145 
288 

315 

433 

37 

447 

259 

76,  315 

440,  441 

91,  142,  146 

3Z(>,  351.  358 

86 

252 

2,2, 

36 

145 

235 

85 

341 

148,  336 


TABLE  OF  CASES  CITED. 


XV 


Chapman,  Ex  parte,  i66  U.  S.,  66r 

Cheatham  v.  United  States,  92  U.  S.,  85 

Chicago  V.  Quimby,  38  111.,  274    . 

Christy,  Ex  parte,  3  Howard,  292 

City  of  Council  Grove,  20  Kan.,  619 

City  of  Crawfordsville  v.  Braden,  130  Ind.,  149 

Clinton  v.  Phillips,  39  Mich.,  319 

Coffin  w.  Commissioners,  97  Mich.,  188 

Commonwealth  v.  Barry,  Hardin  (Ky.),  229 

V.  Byrne,  20  Grattan  (Va.),  165 

V.  Coyle,  160  Pa.  St.,  36 

V.  Dennison,  24  Howard,  66 

V.  Meeser,  44  Pa.  St.,  341 

V.  Moir,  199  Pa.  St.,  534 

V.  Patten,  88  Pa.  St.,  258 

V.  Plaisted,  148  Mass.,  375 

V.  Reeder,  171  Pa.  St.,  505 

V.  Shortall,  206  Pa.  St.,  165 

V.  Swank,  79  Pa.  St.,  154 

V.  Waller,  145  Pa.  St.,  235 

V.  Walton,  182  Pa.  St,  373 

V.  Williams,  79  Ky.,  42 

Confiscation  Cases,  20  Wallace,  92 

Conner  v.  Mayor,  5  N.  Y.,  285     . 

Converse  v.  United  States,  21  Howard  U.  S.,  463 

Cooper,  In  re,  143  U.  S.,  472 

Cotton  V.  Ellis,  7  Jones  (N.  C),  545     . 

County  Clerk,  In  re,  21  Misc.  Rep.  (N.  Y.),  543 

County  Commissioners  v.  Jacksonville,  36  Fla.,  196 

Crampton  v.  Zabriskie,  loi  U.  S.,  601 

Curry  v.  Stewart,  8  Bush  (N.  Y.),  560 

Daily  v.  State,  8  Blackford  (Ind.),  329 

Dalton,  Ex  parte,  44  Ohio  St.,  142 

Danbury  v.  Bird,  34  Iowa,  524     . 

Davidson  v.  New  Orleans,  96  U.  S.,  97 

Davis  V.  C"o«nij'  Commissioners,  153  Mass.,  218 

V.  Mayor,  i  Duer  (N.  Y.),  451  . 

V.  The  State,  7  Md.,  151 

De  Berry  v.  Nicholson,  102  N.  C,  465 

De  Groot  v.  United  States,  5  Wallace,  419 

Dennett,  Petitioner,  32  Me.,  508    . 

Department  of  Health  v.  Rector,  etc.,  of  Trinity  Church 

32 

Detroit  Free  Press  Company  v.  State  Auditor,  47  Mich 
Devine  v.  Coofe  CoMn/y,  84  111.,  590 
DeWalt  V.  Bartley,  146  Pa.  St.,  525      . 


145 
135 


N. 


PAGB 

41. 

446 

147 

347 

439 

175 

326 

341 

235 

314 

359 

298 

438, 

440 

283, 

432 

171. 

172 

17s. 

176 

172, 

177 

. 

242 

. 

402 

. 

283 

• 

III 

• 

292 

• 

314 

90 

109 

• 

287 

. 

287 

• 

94 

• 

435 

• 

252 

• 

431 

• 

432 

• 

40 

• 

310 

• 

448 

• 

37 

• 

335 

• 

432 

• 

433 

• 

253 

• 

239 

. 

385 

108 

242 

Y.. 

334 

339 

• 

223 

• 

174 

. 

249 

XVI 


TABLE  OF  CASES  CITED. 


Dickson  V.  People,  17  111.,  191 

Diggs  V.  State,  49  Ala.,  311 

District  of  Columbia  v.  Weytnan,  4  Mackey,  328 

Dolan  V.  Mayor,  68  N.  Y.,  274    . 

Donahue  v.  County  of  Will,  100  111.,  94 

Dooley  v.  United  States,  182  U.  S.,  222 

Downing  v.  Rugar,  21  Wendell  (N.  Y.),  178 

Dowsv.  Chicago,  11  Wall.,  108    . 

Druecker  v.  Salomon,  21  Wis.,  621 

Duffield  V.  School  District,  162  Pa.  St.,  476 

Dugan  V.  United  States,  3  Wheaton,  17a 

Dukes  V.  State,  11  Ind.,  557 

Dullain  V.  Wilson,  53  Mich.,  392 

Dunlap  V.  United  States,  173  U.  S.,  65 

Durand  v.  Hollins,  4  Blatchford,  451 

Durkin,  In  re,  10  Hun.,  269 

Edwards  v.  United  States,  103  U.  S.,  471 

£fem  V.  United  States,  142  U.  S.,  651 

£/ioi  V.  Swartwout,  10  Peters,  137 

£ZZw  V.  State,  4  Ind.,  i         .         . 

£/y  V.  Parsons,  55  Conn.,  83 

Erskine  v.  Hohnbach,  14  Wallace,  613 

Evans  v.  Trenton,  24  N.  J.  L,,  764 

Evansville  v.  State,  118  Ind.,  426 

Fairchild,  In  re,  151  N.  Y.,  359  . 

Farrelly  v   Co/e,  60  Kan.,  356 

Fassett,  In  re,  142  U.  S.,  479 

Field,  Ex  parte,  5  Blatchford,  63 

— — -  V.  Clark,  143  U.  S.,  649 

V.  P^o^/^,  3  111.,  79    .  .  .  .        39,  41 

Fields  V.  Stokley,  99  Pa.  St.,  306 

Finley  v.  Hershey,  41  Iowa,  389 

T^ir^  Commissioners,  In  re,  19  Colo.,  482 

Firemen's  Fund  v.  Roome,  93  N.  Y.,  313 

Fir5<  National  Bank  v.  Mount  Tabor,  52  Vermont,  87 

Fisher  v.  McGirr,  i  Gray,  i 

Fiske  V.  Police  Jury,  116  U.  S.,  131 

Fitzsimmons  v.  Brooklyn,  102  N.  Y.,  536 

Flanagan  v.  Hoyt,  36  Vermont,  565 

Florida  v.  Gibbs,  13  Fla.,  55 

i<"or(f  V.  Commissioners,  22  Pac.  (Cal.),  278 

Foster  v.  Neilson,  2  Peters,  253   . 

i^oMf  V.  State,  3  Haywood  (Tenn.),  98 

Fox  V.  McDonald,  loi  Ala.,  51    . 

Fremont  v.  Crip  pen,  10  Cal.,  211 

French  v.  Edwards,  13  Wall.,  506 


PAGB 

.     310 
.     258 

•  330 
258,  288 

41 

.     389 
.     344 

•  433 
.      108 

.     361 

•  383 

•  414 
103,  I09;  313,  435 

•  145 
92 

•  33^ 
308, 309 

148,  336 

•  137 

•  223 
407,  408 

402 

.      287 

260 

•  252 
109 

.      148 

90.  435 

88 

74.  95.  loi.  107 

360,  362,  364 

.     366 

95.  104 
.     291 

.  344 
.  348 
.  288 
233,  286,  288 
.  408 
.      241 

•  315 
94 

.      413 

36,  95.  98 

.     431 

29s,  296,  343,  407 


TABLE  OF  CASES  CITED. 


xvu 


French  V.  State,  141  Ind.,  618 

Gaines  v.  Thompson,  7  Wallace,  347    . 

Gates  V.  Delaware  County,  1 2  Iowa,  405 

Georgia  v.  Stanton,  6  Wallace,  50 

Gibbons  v.  United  States,  8  Wallace.,  269 

Gonzales  v.  M^iV/iam^,  192  U.  S.,  i 

Gordon  v.  United  States,  117  U.  S.,  697 

Gorman  v.  Ca/*?,  7  Cowen  (N.  Y.),  739 

Gould  V.  r/i^  Ci^y  0/  Rochester,  105  N.  Y.,  46 

Graham  v.  Norton,  15  Wallace,  427 

Granville  v.  Cownij'  Commissioners,  97  Mass.,  193 

Green  v.  Burke,  23  Wendell  (N.  Y.),  490 

V.  Mumford,  5  R.  I.,  472    . 

V.  T/j^  Mayor,  6  Ga.,  i 

Gregory  v.  A^'^w  Forfe,  113  N.  Y.,  416  • 
Grider  v.  Tally,  77  Ala.,  422 
6^rt>r  V.  Taylor,  4  McCord  (Tenn.),  206 
Guden,  In  re,  171  N.  Y.,  529 
Guess,  In  re,  38  N.  Y.  Supp.,  91 
Gulick  V.  New,  14  Ind.,  93 
Hadley  v.  Moyor,  33  N.  Y.,  603 
Hagerstown  v.  Dechert,  32  Md.,  369 
ifa/Z,  7m  r^,  50  Conn.,  131    . 

V.  Wisconsin,  103  U.  S.,  5    . 

Hamilton  County  v.  Mighels,  7  Ohio  State,  109 
Hand  v.  Brookline,  126  Mass.,  324 
Hanruj,  v.  Young,  84  Md.,  179 
Hans  V.  Louisiana,  134  U.  S.,  i 
Harrington  v.  Fuller,  18  Me.,  277 
Harrison  v.  A^^f  Orleans,  t,t,  La.  Ann.,  222 
Hartford  v.  Bennett,  10  Ohio  State,  441 
Hartranft's  Appeal,  85  Pa.  St.,  433 
Harward  v.  5^  C/azV  (5°  Monroe  Levee,  etc.,  Co., 
Haynes  v.  Ca/?^  Moy,  50  N.  J.  L.,  55  . 
Hennen,  Ex  parte,  13  Peters,  230 
Higginbotham' s  Executrix  v.  Commonwealth,   25 

637 

Higley  v.  Bunce,  10  Conn.,  435    . 

//j7/  v.  Boston,  122  Mass.,  344 

Hinze  v.  People,  93  111.,  406 

Hoke  V.  Field,  10  Bush  (Ky.),  144 

Holmes,  Ex  parte,  12  Vt.,  631       . 

Honey  v.  Graham.,  39  Tex.,  i 

Hooten  v.  McKinney,  5  Nev.,  194 

Hornbeck  v.  W^^sifcroofe,  9  Johnson  (N.  Y.),  73 

Horner  V.  Coffey,  25  Miss.,  434    . 


lU 


Grattan 


130 


PAGE 

95.  98 

433 
309 
94 
388 
148 

34 

408 

340 
440 

432 
258 
436 
339 
314 
405 
435 
103,  314 
246 

255 
242 

37 

264 

222 

59.  166 

166 

235 
390 

40S 

433 
256 
92,  95,  108 

177 

136,  312 
(Va.). 

391 

386 
256 

255 
74 
40 

283 
164 
164 


XVUl 


TABLE  OF  CASES  CITED. 


Houston  County  Commissioners  v.  Jessup,  22  Minn.,  552 

Hubbard  v.  State  (Ohio),  58  L.  R.  A.,  654 

Huff  V.  Cook,  44  Iowa,  639 

Hum,  Ex  parte,  92  Ala.,  102 

Hyde  v.  State,  52  Miss.,  665 

Interstate  Commerce  Commission  v.  Brinson,  154  U.  S.,  447 

Jackson  V.  Cory,  8  Johnson  (N.  Y.),  385 

V.  Hartwell,  8  Johnson  (N.  Y.),  422 

V.  Humphrey,  i  Johnson  (N.  Y.),  498 

V.  Schoonm^tker ,  2  Johnson  (N.  Y.),  230 

Jacobs,  In  re,  98  N.  Y.,  98  . 

Janitor,  In  re,  35  Wis.,  410 

Jeffries  v.  Harrington,  17  Pac.  Rep.,  505 

Johnston  v.  Wilson,  2  N.  H.,  202 

Jones  V.  Jefferson,  66  Texas,  576 

Kaine,  In  re,  14  Howard,  103 

Kansas  City  v.  Scarritt,  127  Mo.,  642 

Keenan  v.  Perry,  24  Texas,  253 

Kehn  v.  State,  93  N.  Y.,  291 

i^Te/Zy  V.  VFtrnfter/j-,  61  Miss.,  548 

Kendall  v.  United  States,  12  Peters,  524 

Kennedy  v.  Board  of  Health,  2  Pa.  St.,  366 

Kentucky  v.  Dennison,  24  Howard  (U.  S.),  66 

Kilbourn  v.  Thompson,  103  U.  S.,  168 

King  V.  Barker,  1  Wm.  Bl.,  352  . 

V.  Hughes,  5  B.  &  C,  886  . 

V.  Patterson,  5  B.  &  Ad.,  9 

King's  Prerogative  in  Saltpetre,  12  Coke,  12 

Kinneen  v.  H^^Ws,  144  Mass.,  497 

ifoc/i  V.  Mayor,  152  N.  Y.,  72      . 

Ladd  V.  Holmes,  40  Oregon,  167 

Lange  v.  Benedict,  73  N.  Y.,  12 

Langford  v.  United  States,  101  U.  S.,  341     . 

Lansing  v.  Cowwfy  Treasurer,  i  Dillon  C.  C,  522 

Laramie  County  v.  AZ6a«y  CoMnfy,  92  U.  S.,  307 

Lawton  V.  Steele,  152  U.  S.,  133  . 

V. 119  N.  Y.,  226 


79.  387.  399. 


Legislative  Adjournment,  In  re  The,  18  R.  I.,  824 

Levy  Court  v.  Coroner,  2  Wallace,  501 

Lewis  V.  The  Commissioners  of  Marshall  County,  16  Kan.,  i 

Liggett  V.  Bates,  50  Pac.  Rep.,  860 

Litchfield  v.  T/t^  Register,  &c.,  9  Wallace,  575 

Little  V.  Barreme,  2  Cranch,  170  . 

London  v.  Headon,  76  N.  C,  72  . 

Long  V.  Taxing  Districts,  7  Lea  (Tenn.),  134 

Longacre  v.  Stote,  3  Miss.,  637  ... 


PAGB 

395 
292 
264 

433 
40 
281 
164 
164 

341 
164 

348,  361 

38 

264 

256 

306 

438 

173 

41 

287 

258 

433.  438 

338,  355 

•     430 


32, 


351. 
351. 


02 


446 
.  430 
.  310 
.     310 

•  365 
.     235 

•  315 
.     247 

401 

387,388 

.     438 

.      171 

354,  359 
353.  361 
109 

165 
241 

252 

148 

92 

256 

329 

258 


TABLE  OF  CASES  CITED. 


XIX 


Lorillard  v.  Town  of  Monroe,  ii  N.  Y.,  392 
Louisiana  v.  Jumel,  107  U.  S.,  711 
Lowry  v.  Erwin,  6  Robinson  (La.),  192 
Luther  v.  Borden,  7  Howard  (U.  S.),  i 
Mahon,  In  re,  lyi  N.  Y.,  26^ 
Marbury  v.  Madison,  i  Cranch,  137     . 
Marsh  v.  Hanley,  iii  Cal.,  368   . 
Martin,  In  re,  5  Blatchford,  303 

V.  Mott,  12  Wheaton,  19 

V.  IVJi/i^rs/'oon,  135  Mass.,  175 

Mason  v.  Sifcfcy,  2  H.  &  C,  881  . 
Maynard  v.  Board,  84  Mich.,  228 
Alayor  v.  Furze,  3  Hill  (N.  Y.),  612     . 

V.  Ordrenan,  12  Johnson  (N.  Y.),  i 

V.  Shattuck,  19  Colo.,  104 

Mayor  of  Baltimore  v.  Reynolds,  20  Md.,  i 

V.  State,  15  Md.,  376 

Mayor  of  Mobile  v.  Yuille,  3  Ala.,  137 
McCall  V.  Cohen,  16  S.  C,  445     . 
McCortle  v.  Bates,  29  Ohio  St.,  419 
McCoy  V.  Curtice,  9  Wend.,  17    . 
McCrillis  v.  Mansfield,  64  Me.,  198 
McCullough  V.  Commissioners ,  67  Pa.  St.,  30 
McDonald  v.  A/'ra;  Yorfe,  68  N.  Y.,  231 
Mclntire  v.  Wood,  7  Cranch,  504 
McMahon  v.  Palmer,  102  N.  Y.,  176  . 
McMillan  v.  Anderson,  95  U.  S.,  37     . 
Melani's  Case,  68  Pa.  St.,  333 
Memphis  v.  Halsey,  12  Heiskell  (Tenn.),  21 

V.  Woodward,  12  Heiskell  (Tenn.),  499 

Merritt  v.  Cameron,  137  U.  S.,  542 

V.  Welsh,  104  U.  S.,  694 

Merryman,  Ex  parte,  Taney's  Rep.,  246 
Metropolitan  Board  of  Health  v.  Heister,  37  N.  Y 
Mi7/(?r  V.  5/ac/b,  128  U.  S.,  50 

V.  Norton,  152  Mass.,  540 

Milward  v.  Thatcher,  2  T.  R.,  81 
Miner  v.  0/m,  159  Mass.,  487 
Mississippi  v.  Johnson,  4  Wallace,  475 
Mitchell  V.  State,  22  Ga,  211 
Morey  V.  Town  of  Newfane,  8  Barb.  (N.  Y 
Morgan  v.  Nunn,  84  Fed.  Rep.,  551    . 

V.  Register,  Hardin  (Ky.),  609 

Morrill  v.  Jones,  106  U.  S.,  466  . 
Morris  v.  Bulkley,  61  Conn.,  287 
• V.  Columbus,  102  Ga.,  792 


),  645 


334. 33 


66] 


PAGE 

59.  165 

•  393 

•  342 

49.  93 

291 

32,  254,  438 
■     247 

•  433 
94 

.  105 
.  340 
.  243 
.  296 
212 
.  235 
.  341 
177,  260 

37.  347 
401 

•  344 
.  344 

•  395 
.  413 

•  343 
.  438 

•  396 
6,  337.  358 

240 

•  437 
.      288 

.      143 
.        87 
92,  435 
338,  340,  361 

•  143 
.      148 

•  310 

•  249 

92.  435 

•  414 
186,  386 

.        85 

•  437 
.  87 
.  108 
.  361 


XX 


TABLE  OF  CASES  CITED. 


PAR* 

M owers  V .  Smedley ,  6  ]o\\nson' s  Chancery ,■  2?)  ....  429 
Mugler  V.  Kansas,  123  U.  S.,  623  .  .  .  348,  361,  362,  411 
The  Murdoch  Parlor  Grate  Co.  v.  Commonwealth,  152  Mass.,  28  .  392 
Murray's  Lessee  v.  Hoboken  Land  and  Improvement  Company,  18 


How.,  272 
Mygatt  V.  Washburn,  15  N.  Y.,  316 
Neagle,  In  re,  135  U.  S.,  i   . 
New  Hampshire  v.  Louisiana,  103  U.  S.,  76 
Newman  v.  Beckwith,  61  N.  Y.,  205     . 
Newport  v.  Horton,  22  R.  I.,  196 
New  York  v.  Louisiana,  103  U.  S.,  76 

V.  Low,  18  Wendell,  126 

New  York  Department  of  Health  v.  Rector  of  Trinity  Church,  145 

N.  Y.,  32  .... 

Nichols  V.  Comptroller,  4  Stew.  &  Port.  (Ala.),  154 

V.  Mayor,  79  N.  Y.,  582 

V.  McLean,  loi  N.  Y.,  526 

V.  United  States,  7  Wallace,  122 


(N.  Y.).  109 


North  Hempstead  v.  Hempstead,  2  Wendell 

Norton  v.  Shelby  County,  118  U.  S.,  425 

Nowell  V.  Wright,  3  Allen  (Mass.),  166 

0/tzo  V.  Covington,  29  Ohio  St.,  102 

O/^  Mossness,  In  re,  39  Wis.,  509 

OZiu^r  V.  Mo3;or,  63  N.  J.  L.,  634 

Olmstead  v.  T/i^  Mayor,  42  Superior  Ct.  Rep.  (N.  Y.),  481 

Orne  v.  Bar  stow,  175  Mass.,  193 

Ow/ti  V.  Richmond,  23  Grattan  (Va.),  464 

Overskiner  v.  5iaf^,  156  Ind.,  187 

Pace  V.  People,  50  111.,  432  . 

Page  V.  Hardin,  8  B.  Monroe  (Ky.),  648 

V.  Staples,  13  R.  I.,  306 

Parsons  v.  United  States,  167  U.  S.,  324 
Patterson  v.  Barlow,  60  Pa.  St.,  54 
Pennie  v.  i?et5,  132  U.  S.,  464 
Pennoyer  v.  N^^,  95  U.  S.,  714   . 
People  V.  Albertson,  55  N.  Y.,  50 

V.  Angle,  109  N.  Y.,  564 

V.  Beach,  19  Hun.  (N.  Y.),  259 

V.  Betts,  55  N.  Y.,  600     . 

V.  Bissell,  19  111.,  229 

V.  Board,  140  N.  Y.,  i 

V.  Board  of  Apportionment,  64  N.  Y.,  627 

V.  Board  of  Canvassers,   129  N.  Y.,  395  . 

V.  Board  of  Police,  39  N.  Y.,  506  . 

V.  Brady,   166  N.  Y.,  44  . 

V. s6N.  Y.,  182. 


336.  337.  356,  384 

•  2,2,(>,  407 

.  47,  75,  89,  284 

.  390 
.  306 

.  177 

•  390 

•  365 


362 

289,  455 

.  313 
.  288 

.  147 
,  164 

.  258 

.  405 

260 

262 

.  310 
.  224 

.  145 
.  209 
.  253 

•  309 
40 

.  341 

40,  76,311,  312 

.  236 

.  292 

•  335 
177,  210 

•  135 
.  433 
.  431 

•  435 

•  363 
.  431 

237.  238 

•  434 

•  313 
109.  435 


TABLE  OF  CASES  CITED. 

People  V.  Brooks,  i  Denio,  457    . 

V.  Canady,  73  N.  C,  198 

V.  Canal  Board,  55  N.  Y.,  344 

V.  Cicott,  16  Mich.,  243    . 

V.  Clute,  50  N.  Y.,  451     ■ 

V.  Collins,  19  Wend.  (N.  Y.),  56 

V. 34  How.  Pr.  (N.  Y.),  336 

V.  Commissioners,  82  N.  Y .,  506 

V.  Common  Council,  29  Mich.,  108 

V.  Coon,  15  Wend.  (N.  Y.),  277 

■ V.  Corporation  of  New  York,  3  Johnson's  Cases,  79 

V.  Curtis.  50  N.  Y.,  321   . 

V. 50N.Y.,  182. 

V.  Dental  Examiners,  no  111.,  180 

V.  Detroit  Comtnon  Council,  28  Mich.,  228 

V.  Draper,  15  N.  Y.,  532 

V. 63  Hun.  (N.  Y.),  389 

V.  Eckler,  19  Hun.  (N.  Y.),  609 

V.  Fairchild,  67  N.  Y.,  334 

V.  Freeman,  22  Pac,  173 

V.  French,  no  N.  Y.,  494 

V.  Green,  58  N.  Y.,  295    . 

V.  Ha//,  80  N.  Y.,  117      . 

V.  Halsey,  37  N.  Y.,  344  • 

V.  Harlow,  29  111.,  43 

V.  Hartwell,  12  Mich.,  508 

V.  Hoffman,  116  111.,  587 

. V.  Hurlburt,  24  Mich.,  44  .  .         .         33,  i; 

V.  Hurst,  41  Mich.,  328    . 

V.  Kelduff,  15  111.,  492 

V.  Kipley,  171  111.,  44       ....         .      268, 

V.  Kolsem,  130  Ind.,  434 

V.  Leavitt,  41  Mich.,  470 

V.  Leonard,  5  Hun.  (N.  Y.),  62 

V.  Londoner,  13  Colo.,  303 

V.  Mahaney,  13  Mich.,  481 

V.  May,  3  Mich.,  44 

V.  The  Mayor,  51  111.,  17 

V.  The  Mayor  of  New  York,  10  Wend.  (N.  Y.),  393 

V.  Morton,  156  N.  Y.,  136 

V.  Murray,  70  N.  Y.,  521 

V.  Nelson,  133  111.,  565     . 

V.  Norton,  7  Barb.  (N.  Y.),  47 

V.  Palmer,  52  N.  Y.,  83    . 

■ V.  Pease,  27  N.  Y.,  45 

■«- V.  Phillips,  67  N.  Y.,  582 


43 


31 


2, 


XXI 

PAOB 
298 

235 
432 
240 

3" 
433 
147 
431 
296 
298 
429 

435 
109 
148 
177 
176 
147 

47 
430 

40 

433 
o,  431 
283 
432 
290 

239 
40,  236 
177,  260 

•  414 
.   283 

279,  281 

•  177 
.  432 
.  448 

.  432 

177,  210 

260 

.   177 

•  431 
242,  435 

.  255 

•  243 
.  298 

•  305 
240,  433 

•  432 


xxu 


TABLE  OF  CASES  CITED. 


People  V.  Plait,  50  Hun.  (N.  Y.),  454 

V.  Police  Commissioners,  43  How.  Pr.  (N.  Y.) 

V.  Polinsky,  73  N.  Y.,  65 

V.  Porter,  6  Cal.,  26 

V.  Provines,  34  Cal.,  520 

V.  Rice,  65  Hun.  (N.  Y.),  236 

V.  Roberts,  148  N.  Y.,  360 

V.  Stillwell,  19  N.  Y.,  531 

V.  Supervisors,  134  N.  Y.,  1 

V. I  Hill  (N.  Y.),  195 

V.  Tiem-an,  30  Barb.  (N.  Y.),  193 

V.  Trustees,  54  Barb.  (N.  Y.),  480 

V.  Van  Cleve,  i  Mich.,  362 

V.  Walter,  68  N.  Y.,  403  . 

V.  Weber,  86  111.,  283 

V.  Westbrook,  89  N.  Y.,  152 

V.  Williams,  36  N.  Y.,  441 

V. 145  111.,  573 


PAGB 
109,  435 

385  .      .    429 
.   361 

.   35 

109 

.  268 

•  431 

•  413 

•  436 

•  306 

•  432 
241,  433 

•  432 
.  258 
.  431 

•  345 
255,  256 

Com.mittee,  164 


ex.  rel.  Coffey  v.  The  Democratic  General 

N.  Y.,  335 

ex.  rel.  Copcutt  v.  Yonkers,  140  N.  Y.,  i 

ex.  rel.  Derby  v.  Rice,  129  N.  Y.,  461 

ex.  rel.  Devery  v.  Coler,  71  App.  Div.  (N.  Y.),  584 

ex.  rel.  Hogan  v.  French,  119  N.  Y.,  493  . 

ex.  rel.  McAleer  v.  French,  119  N.  Y.,  502 

ex.  rel.  McDonald  v.  Keeler,  99  N.  Y.,  463 

ex.  rel.  Mulvey  v.  York,  41  App.  Div.  (N.  Y.),  419 

ex.  rel.  Munday  v.  Fire  Commissioners,  72  N.  Y.,  445 

ex.  rel.  Sims  v.  Fire  Commissioners ,  73  N.  Y.,  437 

ex.  rel.  Spire  v.  General  Committee,  49  N.  Y.  Supp.,  723 

ex.  rel.  Trayer  v.  Lauterbach,  7  App.  Div.  (N.  Y.),  293 

Perkins  v.  Slack,  86  Pa.  St.,  270 

Perry  v.  Shepherd,  78  N.  C,  83    . 

Phcenix  Insurance  Company,  Ex  parte,  118  U.  S.,  610 

Pike  V.  Megoun,  44  Mo.,  491        . 

Potts  V.  Green,  167  111.,  67   . 

Powell  V.  Newburgh,  19  Johnson  (N.  Y.),  285 

V.  Pennsylvania,  127  U.  S.,  678 

Pratt  V.  Gardner,  2  Cush.  (Mass.),  652 
Public  Clearing  House  v.  Coyne,  194  U.  S.  497 
Queen  v.  Hungerford,  11  Mod.  Rep.,  42 
Railroad  Commissioners ,  In  re,  15  Neb.,  679 
Rains  v.  Simpson,  50  Texas,  495 
Redell  v.  Moores,  63  Neb.,  219     . 
Redmond,  In  re,  25  N.  Y.  Supp.,  381  . 
Reed,  Ex  parte,  100  U.  S.,  13        .         .         . 


.     249 

339.  362 

242 

292 

■     434 

•  434 
41,  448 

•  293 
313.314 
136,  312 

246 

•  244 

•  171 

•  437 

•  439 

•  297 
.     362 

290 

.     363 

•  405 
148,  339 

.     429 
124 

•  405 
210 

•  244 
85.  225 


177 


TABLE  OF  CASES  CITED. 


XXIU 


"Rtes  V.  City  of  Watertown,  19  Wallace,  107 
Rex  V.  London,  8  How.  St.  Tr.,  1039  . 
Richmond  v.  Long,  17  Grattan  (Va.),  375    . 
Rison  V.  Farr,  24  Ark.,  161 
Robertson  v.  Sichel,  127  U.  S.,  507 
Robinson  v.  Rohr,  73  Wis.,  436    . 
Rogers  v.  Buffalo,  123  N.  Y.,  173 

V.  Common  Council,  123  N.  Y.,  173 

V.  Jacobs,  88  Ky.,  502 

Romero  v.  United  States,  24  Court  of  Claims,  2,2> 

Rudolph  V.  New  Orleans,  11  La.  Ann.,  242  . 

Runkle  V.  United  States,  122  U.  S.,  543 

Rushville  Gas  Co.  v.  Rushville,  121  Ind.,  206 

Sog^  V.  Fifield,  68  Wis.,  546 

Sf.  Louis  V.  Z^orr,  145  Mo.,  466   . 

Salem  v.  Eastern  Railroad  Com.pany,  98  Mass.,  43 

Sow  Mateo  County  v.  Railroad  Company,  13  Fed 

Satterlee  v.  Matthewson,  2  Peters,  380 

Savacool  v.  Boughton,  5  Wend.  (N.  Y.),  170 

Sawyer,  In  re,  124  U.  S.,  200 

Sayre  Borough  v.  Phillips,  148  Pa.  St.  482 

Schenck  v.  Peay,  i  Woolworth  C.  C.  Rep.,  175 

Schooner  Orono,  The,  i  Gallison  C.  C,  137 

Schuchardt  v.  T^e  People,  99  111.,  501  . 

Secord  v.  Foutch,  44  Mich.,  89 

Shivers  v.  Newton,  45  N.  J.  L.,  469 

Shurtleff  v.  United  States,  189  U.  S.,  311 

Sipple  V.  5to<&,  99  N.  Y.,  284 

Slattery,  Ex  parte,  3  Ark.,  485 

Smith,  Ex  parte,  2  Cranch  C.  C,  693    . 

7«  r^,  23  Court  of  Claims,  452  . 

V.  Moore,  90  Ind.,  294 

South  V.  Maryland,  18  How  (U.  S.),  396 
South  Dakota  v.  North  Carolina,  192  U.  S.,  286 
Spalding  v.  Vilas,  161  U.  S.,  483 
Speed  V.  Common  Council,  98  Mich.,  360 

V.  97  Mich.,  198 

Spier  V.  Baker,  120  Cal.,  370 
Spitzger  v.  Village  of  Fulton,  172  N.  Y.,  285 
Splittorf  V.  5toi?,  108  N.  Y.,  205 
Springer  v.  United  States,  102  U.  S.,  586 
Starin  v.  Town  of  Genoa,  23  N.  Y.,  439 
State  w.  Allen,  2  McCord,  55 

V.  Ashley,  i  Ark.,  513 

V.  Barbour,  53  Conn.,  76 

V.  Barker,  116  Iowa,  96 


339 


Rep 


PAGE 

.    438 

204 

.   407 

•    235 

.   407 

.   408 

26 

I,  268,  279 

•   329 

.    239 

•   305 

•   363 

90 

.   344 

•   431 

•   173 

,349.355. 360 

722 

•   344 

iZ 

402 

.   282 

.   328,  329 

•   345 

•    92 

264 

240 

.   348 

•   313 

.   392 

•   37 

224 

.   87 

.  256 

•  403 

.  391 

.    .  400 

.   312,  436 

.   254,  312 

•   247 

•   235 

•  392 

.    .  358 

.   167 

•  359 

•  437 

38,  254 

.   172 

XXIV 


TABLE  OF  CASES  CITED. 


State  V.  Beacom,  66  Ohio  St.,  491 

V.  Biddle,  36  Ind.,  138 

V.  Black,  54  N.  J.  L.,  446    . 

V.  Board,  134  Mo.,  296 

V.  Bulkley,  61  Conn.,  287     . 

V.  Buttz,  9  S.  C,  156  . 

V.  Capers,  37  La.  Ann.,  747 

V.  Carroll,  38  Conn.,  449 

V.  Champlin,  2  Baily  (S.  C),  220 

V.  Chase,  5  Ohio  St.,  528     . 

V.  Chatham,  63  Iowa,  659    , 

V.  Clarke,  3  Nevada,  566 

V.  Constantine,  42  Ohio  St.,  437 

• V.  Cowles,  64  Ohio  St.,  162 

V.  Crawford,  28  Fla.,  441 

V.  De  Cress,  53  Tex.,  387     . 

V.  Denny,  118  Ind.,  382 

V.  District  Court,  22  Mon.,  25 

V.  Douglas,  26  Wis.,  428 

V.  Ferguson,  ^^  N.  H.,  424 

V. ,  31  N.  J.  L.,  107 

V.  Field,  3  111.,  79 

V.  Frazier,  48  Geo.,  137 

V.  Gardner,  54  Ohio  St.,  24 

V.  Garesche,  65  Mo.,  480 

V.  George,  22  Oregon,  142     . 

V.  Gloucester,  44  N.  J.  L.,  137 

V.  Goss,  69  Me.,  22 

V.  Hammer,  42  N.  J.  L.,  435 

V.  Hanss,  43  Ind.,  105 

V.  Hoffman,  116  111.,  587 

V.  Howe,  25  Ohio  St.,  588   . 

V.  Hunter,  23  Kan.,  578 

V.  Hyde,  121  Ind.,  20. 

V.  Jones,  66  Ohio  St.,  453    . 

V.  Keenan,  7  Ohio  St.,  546 

V.  Kent,  4  N.  D.,  577  . 

V.  i^mg/t<,  63  Cal.,  333 

V.  Lam^berton,  37  Minn.,  362 

V.  Leavey,  22  Neb.,  454 

V.  Marlow,  15  Ohio  St.,  114 

V.  Martin,  46  Conn.,  479 

V.  McAllister,  38  W.  Va.,  485 

V.  McElroy,  44  La.  Ann.,  796 

V.  Moore,  19  Mo.,  369 

V.  Morse,  48  La.  Ann.,  109 


30 


PAGB 

437 
249 
297 
306,  435 
310 

255 

257 
282 

435 

312 

308 
242 

175 
255 
311 

39 
415 
315 
327 
307 
311 

41 
258,  259 

433 
40,  98 
240 
258 
432 
308 
261 
306 
210 
39 

17s 

40 

414 

III 

432 
177 
283 
432 
260 

238 
408 
416 


36, 


177 


TABLE  OF  CASES  CITED. 


XXV 


PAGB 

Slate  V.  Nohle,  ii8  Ind.,  350 38 

V.  Pastor,  58  Ohio  St.,  620  .......  249 

V.  Phillips,  63  Tex.,  390      .......  237 

V.  Prince,  45  Wis.,  610         .......  41 

V.  Pritchard,  36  N.  J.  L.,  loi       ......  40 

V.  Railway  Company,  19  Wash.,  518  ,         .         .         .         .  432 

V.  Rogers,  58  L.  R.  A.  (Minn.),  663 292 

V.  Smith,  44  Ohio  St.,  348  .......  172 

V.  Sm.ith,  15  Mo.  App.,  412           ......  ^S 

V.  Taylor,  108  N.  C,  196     .......  257 

V.  Tooker,  18  Men.,  540       .......  252 

V.  Trumpf,  50  Wis.,  103       .......  263 

V.  Ziegenheim,  144  Mo.,  283         ......  291 

State  Bank  v.  Hastings,  15  Wis.,  78     .         .         .         .         .         .  289 

Stephenson  v.  Board  of  Election  Com.tnissioners,  118  Mich.,  396 

244,  252 

239 

288 

399 
30s 
344 
288 

253 

40 

296 

85 
166 
440 
238 

85 
323 

36 
256 

309 

393 
331 
455 
137.  400 
312 
289 

76,  77 
60 

94 
440 

383 
86 


249 


Md., 


45 


Stephens  v.  People,  89  111.,  337     . 
Stewart  v.  Police  Jury,  116  U.  S.,  135 
Stokes  V.  Kendall,  3  How.  (U.  S.),  87  . 
Stratton  v.  Oulton,  28  Cal.,  44 
Stuart  V.  Palmer,  74  N.  Y.,  183   . 
Stuhr  V.  Curran,  15  Vroom  (N.  J.),  181 
Sturges  V.  Spofford,  45  N.  Y.,  466 
Supervisors  of  Elections,  Case  of,  114  Mass. 
Supervisors  v.  United  States,  4  Wallace,  43 
Swaim  v.  United  States,  165  U.  S.,  553 
Talbot  County  v.  Queen  Anne's  County,  50 
Tarble's  Case,  13  Wall.,  397 
Taylor  v.  Bleakley,  55  Kan.,  i 

V.  Kercheval,  82  Fed.  Rep.,  497 

Taylor  et  al.  v.  United  States,  3  How.  (U.  £ 
Territory  v.  Stewart,  i  Wash.,  98 
Thompson  v.  Holt,  52  Ala.,  491    . 

V.  United  States,  103  U.  S.,  480 

Tindal  v.  Wesley,  167  U.  S.,  204 

Tisdale  v.  Minouk,  46  111.,  9 

Townsend,  John  J .,  Trustee,  v.  Mayor,  etc., 

Tracy  v.  Swartwout,  10  Peters,  80 

Trainor  v.  Board,  89  Mich.,  162 

Turner  v.  Meloney,  13  Cal.,  621  . 

United  States  v.  Avery,  Deady,  204 

V.  B.  &  O.  Railroad  Company,  17  Wall 

V.  Blaine,  139  U.  S.,  306 

V.  Booth,  21  How.,  506  . 

V.  Bradley,  10  Peters,  343 

V.  Breen,  40  Fed.  Rep.,  402 


).  197 


77  N 


Y., 


542 


322 


XXVI 


TABLE  OF  CASES  CITED. 


United  States  V.  Butterworth,  112  U.  S.,  50  . 

—  V.  Cadwalader,  Gilpin,  563 

— —  V.  Cobb,  II  Fed.,  76 

V.  Commissioners,  5  Wallace,  563 

V.  Duell,  XT 2  U.  S.,  576 

V.  Eaton,  144  U.  S.,  677 

. V.  Eckjord,  6  Wallace,  484 

V.  Eliason,  16  Peters,  291 

V.  Flanders,  112  U.  S.,  88 

V.  Germaine,  99  U.  S.,  508 

V.  Great  Falls  Manufacturing  Company,  112 

645       . 

V.  Hartwell,  6  Wall.,  385 

V.  Hendee,  124  U.  S.,  309 

• V.  Hill,  120  U.  S.,  169    . 

V.  Hoffman,  4  Wallace,  158    . 

V.  Jones,  131  U.  S.,  I 

V.  Kendall,  5  Cranch  C.  C,  163 

V.  Langston,  118  U.  S.,  389     . 

' ■  V.  Lee,  106  U.  S.,  196 

V.  Mann,  2  Brock.  (U.  S.),  11 

V.  Maurice,  2  Brock.  (U.  S.),  96 

V.  McDaniel,  7  Peters,  i  .  47,  75,  i 

V.  Mouat,  124  U.  S.,  309 

V.  Page,  137  U.  S.,  673  . 

■ V.  Palmer,  3  Wheat.,  610 

V. 128  U.  S.,  262 

V.  Perkins,  116  U.  S.,  483 

V.  Peters,  3  Dallas,  121  . 

V.  Ringgold,  8  Peters,  150 

V.  Schurz,  102  U.  S.,  378 

V.  Seamon,  17  How.  (U.  S.),  225 

V.  Sing  Tuck,  194  U.  S.,  161 

V.  Smallwood,  1  Chic.  Legal  News,  321 

V.  Tingey,  5  Peters,  115 

United  States  Bank  v.  Planters  Bank,  9  Wheaton,  904 

Vallandigham,  Ex  parte,  i  Wall.,  243  . 

Van  Orden,  Ex  parte,  3  Blatch.,  166    . 

Van  Orsdell  v.  Hazard,  3  Hill  (N.  Y.),  243  . 

Van  Wormer  v.  The  Mayor  of  Albany,  15  Wend.  (N.  Y.),  2 

Village  of  Carthage  v.  Frederick,  122  N.  Y.,  268 

Wales  V.  Belcher,  3  Pickering  (Mass.),  508  . 

V.  Whitney,  114  U.  S.,  564  . 

Walker  v.  Sauvinet,  92  U.  S.,  90 
Walter  v.  Belding,  24  Vermont,  658     . 
Wampler  v.  State,  148  Ind.,  557  . 


PAGB 

376 

• 

144 

.  14: 

J.  375 

« 

148 

. 

148 

•        • 

86 

. 

385 

J 

37,  90 

• 

290 

22 

5.  299 

U.S.. 

• 

389 

32 

4.  225 

•           • 

225 

• 

145 

• 

439 

• 

388 

79,81 

87,  289,  454 

• 

393 

. 

144 

12 

3.383 

43.  145.  385 

• 

225 

•    • 

90 

. 

94 

• 

389 

.   13s,  268 

. 

439 

385 

•   433.  436 

. 

433 

. 

147 

.    . 

438 

. 

383 

. 

391 

. 

438 

. 

438 

•   30 

7.  3" 

262 

338 

360 

37 

428 

335 

.  283 

.  431 

TABLE  OF  CASES  CITED. 


xxvii 


Ward  V.  Hartford  County,  12  Conn.,  404 
Wardlaw  v.  Mayor,  137  N.  Y.,  194 
Wheeler  v.  Philadelphia,  77  Pa.  St.,  338 
White  V.  Berry,  171  U.  S.,  366     . 

V.  Levant,  78  Me  ,  568 

V.  TalLemon,  2  Dutcher  (N.  J.  L.),  67 

Wiggins  V.  Hathaway,  6  Barb.  (N.  Y.),  632 
Wikkens  v.  Willett,  i  Keyes  (N.  Y.),  521     . 
Wilcox  V.  Jackson,  13  Peters,  498 
Williams  v.  School  District,  21  Pick.  (Mass.),  75 

V.  Suffolk  Insurance  Company,  13  Pet 

V.  United  States,  i  How.  (U.  S.),  290 

Williamsburg  v.  Low,  51  Me.,  599 

Wilson  V.  Board  of  Trustees,  133  111.,  443     . 

V.  The  Mayor,  1  Denio  (N.  Y.),  595 

Wright  V.  United  States,  i  McLean,  509 

Wylie,  Ex  parte,  54  Ala.,  226 

Wynehamer  v.  People,  13  N.  Y.,  370   .         . 


,  415 


PAGE 
.    189 

•  175 
85,  282,  299 

.    286 

•  347 

•  407 

•  448 
89,  90,  144 

•  344 
94 
89 

•  344 
.   176 

.  403 

•  307 
41 

.  34^ 


BOOK   I. 
THE  SEPARATION  OF  POWERS. 


CHAPTER  I. 

ADMINISTRATION. 

The  most  striking  if  not  the  most  important  ques- 
tions of  public  law  and  the  first  to  demand  solution 
are  those  to  which  the  name  "  constitutional "  is 
applied.  To  their  solution  the  wisdom  and  political 
activity  of  the  past  have  been  devoted.  The  present 
age,  however,  is  devoting  itself  primarily  to  questions 
which  are  generally  referred  to  as  "  administrative." 
A  function  of  government  called  "  administration " 
is  being  differentiated  from  the  general  sphere  of 
governmental  activity,  and  the  term  "  administrative 
law  "  is  applied  to  the  rules  of  law  which  regulate  its 
discharge. 

On  the  continent  of  Europe  the  term  "  administra- 
tive law"  has  been  accepted  in  the  vocabulary  of 
legal  writers,  and  no  course  of  legal  study  is  regarded 
as  complete  which  does  not  devote  more  or  less 
attention  to  this  subject. 

In  England,  however,  as  well  as  in  the  United 
States,  administrative  law  has  been  generally  ignored 


ir^ 


2  THE  SEPARA  TION  OF  PO  WERS. 

1      '  as  a  branch  of  legal  study  except  by  those  authors 

who  have  been  subjected  directly  to  the  influences  of 
\)xontinental  thought.  Some  English  writers,  as,  e.  g., 
Mr.  A.  V.  Dicey,  even  deny  the  possibility  of  its  ex- 
istence.^ This  general  failure  on  the  part  of  English 
writers  to  recognize  the  existence  of  administrative 
law  is  due  to  the  fact  that  legal  classification  has 
never  seemed  to  them  to  be  of  any  importance.  As 
Holland^  points  out,  except  as  it  has  been  deduced 
from  the  theory  of  feudal  tenure,  the  classification  of 
English  law  "is  little  more  than  a  collection  of  iso- 
lated  rules  strung  together,  if  at  all,  only  by  some 
slender  thread  of  analogy." 

The  denial   of  the  possibility  of  the  existence  of 
administrative  law   in  countries  having  the  English 
_    '^      system  of  law  which  is  made  by  Mr.  Dicey,  is,  how- 
ever, due  to  a  misconception.       His  idea  is  that  the 
■'^'  term,  which  is  a  translation  from  the  French,  was  orig- 

inally and  is  now  used  by  the  French  to  indicate  rules 
of  law  which  provide  that  administrative  officers  are 
not  civilly  responsible  to  the  courts,  and  which,  on 
that  account,  are  inconsistent  with  the  spirit  of  Eng- 
lish institutions.     While  it  is,  of  course,  true  that  the 

.   >  ^        rules  of  law  which  the  French  call  administrative  do 
^    .-  include  rules  which  have  no  force  in  England  or  the 

-  \  United  States,  it  is  to  be  noticed  that  this  adminis- 

-  z*^  trative  law  is  much  broader  in  its  scope  than  would 
^  appear  from  Mr.  Dicey's  description  of  it.     It  includes 

many  matters  which  are  and  must  be  the  subject  of 

legal  regulation  in  English-speaking  countries.' 
I 

'  The  Law  of  the  Constitution,  3d  ed.,  p.  304. 

*  Elements  of  Jurisprudence,  1st  ed.,  Preface. 

*  Cf.  Wyman's  Administrative  Law,  p.  3. 


/V^ 


.^' 


<_^ 


ADMINISTRA  TIOJST.  3 

It  may  therefore  be  said  with  perfect  safety  that 
administrative  law,  using  the  words  in  their  proper 
sense,  does  and  must  exist  in  all  countries  which 
have  attained  any  political  development  worthy  of 
the  name. 

The  subject  has,  however,  as  compared  with  other 
subjects  of  legal  study,  been  so  recently  differentiated 
that  there  is  not  unanimity  as  to  its  meaning  and 
extent.  This  is  due  largely  to  the  fact  that  the  func- 
tion of  administration,  whose  discharge  administrative 
law  regulates,  has  itself  only  recently  been  differen- 
tiated from  the  general  function  of  government  by 
the  theoretical  writers  on  government  who  have  not 
as  yet  reached  harmonious  conclusions  as  to  its 
meaning. 

What,  now,  do  we  mean  by  administration  as  a  func- 
tion of  government,  and  what  do  we  mean  by  admin- 
istrative law?  In  the  first  place,  it  may  be  said  that 
administration  has  to  do  with  the  governmental  sys- 
tem in  active  operation.  Theoretically,  the  study  of 
administration  should  have  little  if  anything  to  do 
with  the  organization  of  government.  The  study  of 
the  organization  of  government  belongs  to  constitu- 
tional law.  Constitutional  law  deals  with  the  anatomy 
of  government ;  administrative  law  and  administra- 
tion have  to  do  with  the  functions,  the  physiology  of 
government,  so  to  speak. 

In  the  second  place  it  may  be  remarked  that  a 
study  of  governmental  organization  alone  will  often 
not  give  a  correct  idea  of  the  real  character  of  govern- 
ment. It  is,  of  course,  true  that  a  knowledge  of  its 
organization  is  absolutely  necessary.  But  it  is  to  be 
remembered  that  the  real  character  of  a  governmental 


4  THE  SEPARATION  OF  POWERS. 

system  Is  determined  just  as  much  by  the  way  in 
which  its  various  parts  operate  as  by  the  formal 
character  of  its  organization.  Indeed,  it  may  happen, 
as  in  the  case  of  an  organism,  that  certain  of  its  parts 
cease  to  discharge  the  functions  which  they  were 
originally  intended  to  discharge.  Others  may  be 
called  upon  to  discharge  functions  which  they  were 
originally  not  intended  to  discharge.  The  study  of 
administration,  being  devoted  to  the  actual  operations 
of  government,  is  well  adapted  thus  to  correct  im- 
pressions derived  from  a  consideration  of  matters 
of  organization  which  from  the  point  of  view  of 
the  real  character  of  the  o-overnment  are  incorrect 
impressions. 

Finally,  it  is  to  be  noticed  that  the  real  character  of 
a  governmental  system  is  determined  not  only  by  the 
laws  in  accordance  with  which  it  is  supposed  to  act, 
but  also  by  extra-legal  conditions  and  practices.  In- 
deed it  is  not  infrequently  the  case  that  these  extra^ 
legal  conditions  and  practices  have  more  influence  in 
giving  its  real  character  to  a  political  system  than  the 
laws  which  are  supposed  to  regulate  its  action.  Thus, 
Rome  became  an  empire,  preserving  for  a  long  time 
the  form  of  a  republic.  Thus,  again,  the  public  law 
of  England  makes  provision  for  a  crown,  a  privy 
council,  and  a  parliament.  But  every  one  who  knows 
anything  about  the  English  government  knows  that 
none  of  these  institutions  is  to  the  real  political  life 
of  the  English  people  what  the  Cabinet  is — a  body 
absolutely  unknown  to  the  English  law.^ 

The  necessity  of  studying  extra-legal  political. con- 
diTTons  and  practices  is  most  marked  in  the  case  of 

'  Cf.  Goodnow,  Politics  and  Adfninistration. 


V 


governmental  systems  based  on  a  written  constitution.  ^<--^ 
No  sooner  is  such  an  instrument  adopted  thani 
political  forces  begin  at  once  to  interpret  and 
amend  it  until  the  actual  political  system  becomes  in 
many  respects,  almost  without  the  knowledge  of  the 
people,  quite  different  from  the  system  as  outlined  in 
the  written  constitution.  No  better  example  of  this 
fact  can  be  found  than  the  method  of  electing  the 
President  of  the  United  States.  Although,  as  pro- 
vided by  the  constitution,  the  President  is  formally 
elected  indirectly  by  the  people  of  the  States,  i.  e.,  by 
presidential  electors  who  are  elected  by  the  people, 
hardly  any  one  who  votes  for  a  presidential  elector^ 
gives  him  a  thought.  Every  one  is  thinking  of  the 
presidential  candidates  put  in  nomination  by  the 
political  parties.  The  party  system — an  extra-legal 
institution — has  thus  come  to  supplement — we  may 
say,  indeed,  to  amend — the  written  constitution.^ 

Since  administration  and  administrative  law  have 
to  do  with  the  governmental  system  in  operation,  or, 
in  other  words,  with  the  actual  operations  of  political 
_life,  it  is  absolutely  necessary  that  the  study  of  these 
subjects  take  into  account  not  merely  the  formal 
governmental  system  as  it  is  outlined  in  charters  of 
government  and  legal  rules,  but,  as  well,  those  extra- 
legal conditions  and  practices  which,  it  has  been 
shown,  have  such  an  important  influence  on  the  real 
character  of  governmental  systems.  What,  now,  are 
the  actual  operations  of  political  life  with  which  the 
study  of  administration  and  administrative  law  has 
to  do  ?  These  operations  group  themselves  naturally 
under  two  heads.     They  consist  either  in  operations 

'  Cf.  Macy,  Party  Organization  and  Alachinery,  passim. 


J^l^ 


^ 


VV 


rZT^  SEPARATION  OF  POWERS. 

/  /y  which  are  necessary  to  the  expression  of  the  pol]ti_cal 
will  or  in  operations  which  are  necessary  in  order  that 
that  will  may  be  executed.  The  political  will  must  be 
expressed  before  political  action  can  be  had.  The 
political  will  must  be  executed  after  it  has  been  ex- 
pressed, if  that  will  is  to  result  in  political  action. 

In  the  case  of  a  human  being,  who  naturally  for- 
mulates and  executes  his  will  himself,  it  is  necessary 
that  the  will  be  formulated  before  it  is  executed.  In 
the  case  of  political  beings  it  is  necessary  not  only 
that  the  will  of  the  sovereigfn  be  formulated  or  ex- 
pressed  before  it  can  be  executed,  but  also  that  the 
xecution  of  that  will  be  entrusted  in  large  measure 
to  a  different  organ  from  that  which  expresses  it. 
The  great  complexity  of  political  conditions  makes  it 
practically  impossible  for  the  same  governmental 
organ  to  be  entrusted  in  equal  degree  with  the  dis- 
charge of  both  functions. 

The  two  functions  of  ofovernment  which  we  have 
attempted  to  differentiate  may,  for  purposes  of  con- 
venience, be  designated  respectively  as  Politics  and 
Administration.  Politics  has  to  do  with  policies  or 
expressions  of  the  state  will.  Administration  has  to 
do  with  the  execution  of  these  policies.  It  is,  of 
course,  true  that  the  meaning  which  is  here  given  to 
the  word  "  politics "  is  not  the  meaning  which  has 
been  attributed  to  it  by  most  political  writers.  At 
the  same  time  it  is  the  meanino-  which  the  word  con- 
veys  when  it  is  used  in  ordinary  conversation.  As  the 
Century  Dictionary  says  :  Politics  is,  "  in  the  narrower 
and  more  usual  sense,  the  act  or  function  of  guiding  or 
influencing  the  policy  of  government  through  the 
organization  of  a  party  among  its  citizens." 


K 


<P 


4-  ^C-<tx*-e.  ''^^"^^"'^'"^"T"^"'''"^ 

ADMINISTRATION.  7 

The  use  of  the  word  "administration"  as  indicative 
of  the  function  of  executing  the  will  of  the  state 
needs  a  more  extended  apology.  For  the  word, 
when  accompanied  by  the  definite  article,  is  used  to 
indicate  an  organization.  "  The  administration " 
means  popularly  the  most  important  administrative 
authorities.  The  word  "administration"  when  used 
as  indicative  of  function  is  apt,  therefore,  to  promote 
the  idea  that  the  function  of  administration  is  to  be 
found  exclusively  in  the  work  of  what  are  known  as 
the  executive  or  administrative  authorities,  who  are 
in  their  turn  regarded  as  monopolizing  the  discharge 
of  the  function  of  administration.  This  is  not  the  case 
in  any  concrete  government.  For  political  necessity 
requires  that  there  shall  be  harmony  between  the  ex- 
pression and  execution  of  the  state  will.  Lack  of 
such  harmony  will  result  in  political  paralysis.  For 
a  rule  of  conduct,  i.  e.,  a  concrete  expression  of  the 
state  will,  practically  amounts  to  nothing  if  it  is  not 
executed.  On  the  other  hand,  the  execution  of  a  rule 
of  conduct  which  is  not  the  expression  o^  the  state 
will  is  really  an  exercise  by  the  executing  authority 
of  the  right  to  express  the  state  will. 

The  necessary  harmony  between  the  expression  and 
the  execution  of  the  state  will  can  be  obtained  only 
by  subordinating  one  of  these  functions  to  the  other. 
Popular  government  requires  that  the  execution  of 
the  state  will  shall  be  subjected  to  the  control  of 
the  organ  expressing  the  state  will.  For  an  effective 
executive  authority  can  never  be  so  representative  of 
the  people  of  a  state  as  a  body  which  can  effectively 
express  their  will.  Administration  must,  therefore,  be 
subjected  to  the  control  of  politics.     While,  therefore, 

>Vc_<i_    >^  ^^^— ^--*--'    ,         '-^- —   ( 


8  THE  SEPARA  TION  OF  PO  WERS. 

the  function  of  politics  has  to  do  primarily  with 
the  expression  of  the  state  will,  it  has  also  to  do, 

&y^         If  ^secondarily,   with    the   execution   of  that  will.      Pro- 
vision may  be  made  in  the  formal  governmental  or- 

\  ganization   for  the  control  which   politics  must  have 

over  administration.  Thus,  the  constitution  of  a 
state  may  give  the  legislature  the  power  to  remove 
the  officers  entrusted  with  the  execution  of  the  law 
and  subject  their  actions  to  a  continual  control  to  be 
exercised  by  the  legislature.  This  is  what  is  done  in 
Switzerland.^  If  no  provision  for  such  control  is 
made  by  the  constitution,  the  control  is  apt,  in  a  pop- 
ular government,  to  develop  outside  of  the  govern- 
ment. This  is  the  case  in  England,  where,  as  a  result 
of  political  practice,  the  ministry  must  resign  when 
they  lose  the  confidence  of  the  House  of  Commons. 

But  however  this  control  may  be  provided,  whether 
provision  be  made  for  it  in  the  governmental  system 
or   not,   it  should  not  be   extended  beyond  what  is 
necessary  to  produce  harmony  between  the  making 
^  and  enforcement  of  law,  i.  e.,  between  the  expression 

and  execution  of  the  state  will.  If  it  is  extended 
beyond  these  limits  it  is  apt  to  defeat  the  pur- 
pose for  which  it  is  established.  If  made  use  of,  e. g., 
to  perpetuate  the  existence  of  a  particular  party  or- 
ganization, it  really  hinders  instead  of  aiding  the 
,  spontaneous  expression  of  the  public  will,  and  ham- 

^'  '      pers  its  efficient  execution. 

^\  The  evils  arising  from  the  partial  and  interested 

administration  of  the  law,  which  are  due  to  the  too 
extensive  control  of  politics  over  administration,  are 
so  great  that  the  most  progressive  political  communi- 

'  Lowell,  Government  and  Parties  in  Continental  Europe,  ii.,  p.  197. 


ADMINISTRA  TION.  g 

ties  have  felt  obliged  to  assign  by  law  to  certain  au- 
thorities entrusted  with  the  administration  of  the  law 
a  large  degree  of  independence  in  action.  Such,  for 
example,  has  been  the  case  in  England,  which  from 
a  very  early  time  has  based  her  governmental  system 
on  the  principle  that  no  rule  of  conduct,  z.  e.,  no  ex- 
pression of  the  state  will,  shall  be  enforced  until  the 
concurrence  of  some  authority  largely  independent  of 
the  authority  laying  down  such  rule  of  conduct  has 
been  obtained. 

The  influence  of  this  principle  may  be  seen  in  all 
branches  of  the  English  public  law.  It  is  not,  how- 
ever, the  same  in  the  case  of  all  officers  entrusted 
with  the  execution  of  the  state  will.  The  distinction 
which  is  thus  made  brings  up  naturally  the  differentia- 
tion which  is  usually  made  between  what  are  known 
as  judicial  officers  and  administrative  officers.  The 
former  are  in  the  main  entrusted  with  the  administra- 
tion of  justice  the  latter  are  in  the  main  entrusted 
with  the  administration  of  government.  What,  now, 
do  we  mean  by  these  terms  ?  If  we  analyze  the 
work  done  by  officers  engaged  in  the  application  or 
execution  of  the  law,  we  find  that  a  part  of  this  work 
may  be  differentiated  from  the  rest  by  the  fact  that  it 
consists  in  the  decision  of  controversies  between  indi- 
viduals, or  between  individuals  and  government  offi- 
cers, as  to  the  applicability  in  the  cases  in  question 
of  a  particular  rule  of  law.  The  other  branch  of  the 
work  done  by  government  officers  may  be  distin- 
guished by  the  fact  that  the  action  taken  by  such 
officers  is  not  necessarily,  or  even  often,  the  result  of 
any  controversy  and  is  not  merely  dependent  on  the 
solution  of  the  question  What  is  the  law  ?  but  is  made 


^^ 


>^ 


lo  Tlf^:  SEPARATION  OF  POWERS. 

also  as  a  result  of  considerations  of  expediency. 
Thus,  in  the  first  kind  of  work,  all  the  officer  has  to  do 
■*  is  to  determine  what  is  the  law  applicable  to  the  facts 
brought  before  him  ;  in  the  second  kind  of  work  he 
must  determine,  of  course,  what  is  the  law  in  order  to 
determine  whether  he  is  competent  to  act ;  but  further- 
more he  must  decide  whether  in  case,  he  is  competent, 
it  is  wise  for  him  to  act.  In  the  first  case,  for  example, 
\  f''the  officer  is  to  determine  whether  under  the  law  a 
given  piece  of  property  belongs  to  A  or  B  ;  in  the 
second  case  he  is  to  determine,  for  example,  whether, 
conceding  he  has  the  power,  it  is  wise  for  him  to 
grant  to  A  a  license  to  sell  liquor  or  to  lay  out  a 
highway  over  A's  property.  In  these  last  cases,  it  is 
true,  the  law  may  provide  that  before  he  grants  A 
his  license  he  must  hear  the  objections  which  A's 
neighbors  may  have  to  the  granting  of  the  license,  or 
A's  objections  or  the  objections  of  other  interested 
persons  to  the  laying  out  of  the  highway  as  proposed. 
In  both  of  these  cases  something  in  the  nature  of  a 
controversy  may  thus  arise.  But  it  is  not  a  contro- 
versy as  to  the  applicability  of  the  law  but  rather  one 
as  to  the  expediency  of  the  action  which  it  is  proposed 
to  take. 

Now  the  Anglo-American  law  denominates  the 
first  kind  of  action  as  judicial,  and  the  second 
kind  of  action  as  administrative.  On  account  of 
the  necessity  that  justice  shall  be  administered  im- 
partially, that  is,  with  regard  merely  to  the  law  as  it 
exists,  and  without  regard  to  the  political  position 
and  standing  of  the  contestants  before  the  court,  the 
English  law  from  an  early  time  accorded  to  the  au- 
thorities entrusted  with  the  discharge  of  the  judicial 


ADMINISTRATION.  ^"^"^  '  xx"^^^"^^ 


^fuiTction7  2.  e.,  the  courts,  a  position  of  great  indepen- 
dence. This  independence  was  in  a  large  part  due 
to  the  jury  system.  It  was  also  due  to  the  feeling 
among  the  people  that  the  courts  must  be  free  from 
all  political  influences.  The  fact  that  judges  may  be  re- 
moved by  Parliament  does  not  render  them  politically, 
although  it  may  make  them  legally,  dependent  on  the 
body  which  expresses  the  will  of  the  state.  Their 
political  independence  is  due  to  an  enlightened  public 
opinion.  In  the  United  States  we  have  carried  the 
idea  of  judicial  independence  to  its  utmost  legal 
limits  in  that  we  have  made  it  impossible  for  the  leg- 
islature to  remove  judges  except  as  the  result  of  an 
impeachment  trial.  We  also  have  in  large,  though 
not  to  the  same  degree,  the  feeling  which  is  so  char- 
acteristic of  England,  that  judges  should  be  politically 
as  well  as  legally  independent.  But  owing  to  frequent 
elections,  party  feeling,  and  a  less  enlightened  public 
opinion,  judges  are  not,  from  a  political  point  of  view, 
so  independent. 

It  may  be  said,  therefore,  that  English-speaking 
peoples  have  come  to  the  conclusion  that  the  danger 
of  permitting  distinctly  political  bodies  to  exercise  a 
control  over  the  administration  of  justice  is  so  great 
that  the  authorities  entrusted  with  this  branch  of  the 
execution  of  the  state  will  should  be  placed  in  a  posi- 
tion of  great  independence,  both  from  the  legal  and 
extra-legal  or  political  point  of  view,  even  if  this  posi- 
tion of  independence  diminishes  or  destroys  the  con- 
trol which  politics  has  over  this  branch  of  the  function 
of  administration. 

The  rule  that  the  concurrence  of  some  authority 
independent  of  the  body  expressing  the  state  will 


12 


THE  SEPARATION  OF  POWERS. 


must  be  obtained  before  the  expression  of  the  state 
will  shall  become  a  rule  of  conduct  was  accepted  in 
England  in  the  administration  of  government  as  well 
as  in  the  administration  of  justice.  It  was  applied 
most  conspicuously  in  the  system  of  local  govern- 
ment for  which  England  was  famous,  and  which 
was  ultimately  characterized  by  the  great  indepen- 
dence of  the  local  authorities  entrusted  with  the  en- 
enforcement  of  law.  This  system,  which,  it  was 
believed,  saved  England  from  the  absolute  monar- 
chy, was  introduced  into  this  country  where  the 
local  administrative  authorities  were  assigned  an 
even  greater  independence  than  was  their  portion  in 
England. 

Further,  the  adoption  of  the  principle  of  the  sepa- 
ration of  powers,^   which  was    made  theoretically  a 
part  of  American  public  law,  has  done  much  to  make 
i-  the  executive  or  administrative  authorities,  generally, 

^^  .  independent  of  the  legislative  authority.      Indeed  the 

^  .     degree  of  legal  independence  was  carried  so  far  that 
jL  •  it  would  have  destroyed  that  harmony  between  the 

•  ■  ■  makine  and  enforcement  of  law  had  not  a  control  of 
an  extra-legal  character  been  found  in  the  political 
party.  The  political  party  interested  itself  with  the 
execution  as  well  as  the  making  of  law.  The  con- 
trol   of  the   political  party,  as  is  natural,   has  been 

^  carried  too  far,  and  at  the  present  time,  notwithstand- 

inor  the  mandates  of  our  formal  constitutional  law, 
our  administrative  authorities  are  subjected  to  an 
ever-present  political  control  which  aims  not  merely 
at  securing  the  enforcement  of  law,  but  also  at  the 
perpetuation  and  strengthening  of  party  organization. 

'  See  infra,  p.  24. 


v^ 


r^ 


/v 


^CUr-- ^'^'^■'^^''^ADMINISTRATION.  13 


^ 


U-'Sk^^^^-*"— ''^^ 


In  extending  thus  their  control  the  parties,  the  extra- 
legal political  organizations,  have  stepped  beyond  the 
limits  which,  from  the  point  of  view  of  theory,  should 
be  set  to  their  action  ;  and  the  result  is  at  the  present 
time  a  revolt  against  party  rule  by  many  persons  who 
believe  that  party  tyranny  is  making  the  expression 
of  the  real  will  of  the  people  difficult  and  the  execution 
of  that  will  inefficient. 

This  condition  of  things,  which  is  unquestionably 
bad,  is  to  be  attributed  to  the  undue  extension  of  the 
control  of  politics  over  administration.  Until  it  is 
recognized  that  government  should  be  administered 
as  justice  now  is,  without  regard  to  the  effects  on 
the  party,  z.  e.,  without  regard  to  the  effects  of  gov- 
ernmental action  on  the  future  expression  of  the 
state  will,  it  is  doubtful  whether  we  shall  be  emanci- 
pated from  the  present  tyranny  of  party. 

In  other  words,  it  is  necessary  to  the  proper  con-        y^__ 
duct  of  government  that  a  function  which,  for  want    ,  . 
of  a  better  word  may  be  called  the  function  of  admin-  "^^^^'^ 
istration,    shall    be   granted    recognition.      The    dis-  , — , 
charge  of  this  function  consists  in  the  impartial  and /l^.^^'^v-— * 
efficient  execution  of  the  law  as  laid  down  by    the  /| 

legislative  body.  If  we  are  to  be  guided  by  the 
facts  of  history  we  may  conclude  that  its  recognition 
will  be  accompanied  by  the  grant  of  a  reasonable  de- 
gree of  independence, — not  merely  a  legal,  but,  as 
well,  an  extra-legal  independence — to  those  to  whom 
its  discharge  is  entrusted.  For  it  was  only  when 
judicial  authorities  were  made  independent  in  fact  as 
in  form  that  the  administration  of  justice  became 
impartial. 

The  problem  in  the  case  of  the  administrative  is 


THE  SEPARATION  OF  POWERS. 


\A^ 


;^ 


more  difficult  of  solution  than  in  the  case  of  the 
judicial  function.  For  it  is  necessary  in  the  case  of 
the  former  function  that  it  should  be  subjected  to  the 
control  of  politics  to  an  extent  which  will  ensure  har- 
mony between  the  making  and  the  enforcement  of 
law.  Much  may  undoubtedly  be  done  by  laws  which, 
like  the  civil  service  laws,  remove  administrative 
positions  from  politics,  but  much  must  as  unques- 
tionably be  left  to  a  sound  public  opinion  which  will 
insist  that  impartial  enforcement  of  law  is  an  end  in 
and  of  itself.  Such,  then,  is  what  is  meant  in  these 
pages  by  the  function  of  administration — the  execu- 
tion, in  non-judicial  matters,  of  the  law  or  will  of  the 
state  as  expressed  by  the  competent  authority. 

It  has  already  been  shown  that  the  function  of  ad- 
ministration, z.  e.,  the  execution  of  the  law,  must  in 
some  way  be  subjected  to  the  control  of  the  law-mak- 
ing authority.  It  is  also  to  be  noticed  that  in  all  con- 
-^'r  Crete  governmental  systems  the  highest  governmental 
authorities  entrusted  with  the  execution  of  the  law  do 
much  towards  shaping  the  law  by  the  influence  they 
exert  over  the  legislative  body.  Express  provision 
for  the  exercise  of  such  influence  may  be  made  in  the 
law,  as,  for  example,  the  power  of  high  executive  offi- 
cers to  initiate  legislation  or  to  send  messages  and  rec- 
ommendations to  the  legislature.  Where  such  express 
provision  is  not  made  it  is  none  the  less  true  that  such 
an  influence  is  exerted,^  While  legally  the  shaping  of 
legislation  may  thus  be  a  part  of  the  work  of  author- 
ities whose  duties  are  otherwise  mainly  executive  in 


J^ 


'  See  Ford,  The  Rise  and  Growth  of  American  Politics,  p.  275,  chapter  en- 
titled "  The  Presidency,"  on  the  influence  of  the  American  Executive  on 
legislation. 


AD  MINIS  TRA  TION.  1 5 

character,  it  is  none  the  less  true  that  from  the  point 
of  view  of  theory  this  work  is  political  rather  than  ad- 
ministrative in  character.  Thus,  authorities  mainly 
political  control  administration,  and  authorities  mainly 
administrative  influence  politics. 


CHAPTER  II. 


ADMINISTRATIVE    LAW. 


Administrative  law,  from  the  point  of  view  which 
has  been  taken,  should  deal  exclusively  with  this 
function  of  administration  which  has  been  differen- 
tiated. But  from  the  point  of  view  of  the  generally 
accepted  legal  terminology  its  scope  is  somewhat 
larger.  Administrative  law  not  only  treats  of  the 
function  of  administration,  i.  e.,  the  execution  of  the 
law,  thus  determining  the  competence  of  the  execu- 
tive or  administrative  officers  of  the  government,  it 
has  also  to  supplement  constitutional  law.  For  while 
constitutional  law  in  theory  should  deal  with  the  en- 
tire structural  organization  of  the  government,  as  a 
matter  of  fact  it  has  to  do  merely  with  the  general 
form  of  the  government  and  the  relations  of  the  most 
important  governmental  authorities,  one  with  an- 
other. Administrative  law  takes  up  this  work  where 
constitutional  law  leaves  it,  and  carries  out  in  its 
minutest  details  the  general  plan  of  governmental 
organization  laid  down  by  constitutional  law.  Thus 
the  constitutional  law  provides  for  a  chief  executive ; 
the  administrative  law  proceeds  to  organize  the  vari- 
ous executive  departments  through  which  the  execu- 
tive authority  acts. 

With  this  important  exception,  however,  adminis- 

i6 


ADMINISTRA  TIVE  LA  W. 


17 


n    .AT 


trative  law  deals  with  the  execution  of  law,  with  the 
work  of  governmental  authorities  whose  existence  is 
to  be  presumed  and  whose  organization  is  determined 
by  the  constitutional  law.  Administrative  law  treats 
of  the  powers  and  duties  of  officers  whose  main  func- 
tion is  to  execute  the  law. 

It  is  to  be  remembered,  however,  that,  in  so  far  as 
the  administrative  law  determines  the  competence  of 
such  officers,  it  indicates  what  are  the  rights  of  the  in- 
dividual which  the  administration  must  respect  and 
the  remedies  to  which  the  individual  may  resort  in 
case  the  administration  does  not  respect  these  rights. 
These  rights  may  be  and,  as  a  matter  of  fact,  are 
in  the  United  States  guaranteed  to  the  individual  by 
the  written  constitution.  But  as  in  the  case  of  the 
organization  of  government,  the  constitutional  law  goes 
no  further  than  to  sketch  out  the  general  plan,  so  here 
the  constitutional  law  simply  states  in  a  general  way 
what  are  individual  rights,  leaving  to  the  administra- 
tive law  to  indicate  how  far  they  are  modified  by  the 
powers  granted  to  administrative  officers,  and  what 
remedies  are  open  in  case  individual  rights  are  violated. 

Administrative  law  is  therefore  that  part  of  the  law  ^ 
which  fixes  the  organization  and  determines  the  com- 
petence of  the  authorities  which  execute  the  law,  and    7  /\f)^ 
indicates  to  the  individual  remedies  for  the  violation    \ 


^^-?^1^ 


iSU 


J^ 


of  his  riofhts 


"^^^  0 


Taking  up  the  subjects  in  the  order  adopted  in  this     /f)  ^oy. 
definition,  we  find  that  administrative  law  treats  ia^. 


0--: 


^ 


detail  of  the  following  matters  : 

/.  — A  dminis trative  organization. 
As   the    function   of   administration   is   discharged 
in  large  part  by  the  executive  authorities — i.  e.,  the 


'X 


i8  tiIjE  separation  of  powers. 

authorities  which  execute  the  laws,  that  part  of  the 
administrative  law  which  has  to  do  with  govern- 
mental organization  has  to  do  primarily  with  the 
organization  of  these  executive  authorities.  But  in- 
asmuch as  all  states  of  any  size  are  composed  of  vari- 
ous territorial  divisions,  many  of  which  are  at  the 
same  time  bodies  corporate  participating  in  the  work 
of  administration,  administrative  law  has  to  treat  not 
merely  of  the  central,  but  also  of  the  local,  administra- 
tive organization.  In  this  country,  the  administrative 
organization,  not  only  of  the  national,  but  also  of  the 
state,  government  and  of  the  local  communities,  such 
as  the  counties,  towns,  cities,  and  villages,  is  then  to 
be  fixed  by  administrative  law,  which  is  to  be  found 
in  the  constitutions  as  well  as  in  statutes  and  local 
ordinances. 

//. — Powers  and  duties  of  administrative  officers. 

In  every  government  we  find  regularly  constituted 
public  services  whose  extent  and  number  vary  accord- 
ing to  the  manners  and  peculiar  genius  of  the  people. 
In  the  first  place,  the  state  occupies  a  position  among 
other  states.  It  is  a  subject  of  international  law,  and 
as  such,  has  rights  and  duties  over  against  other 
states,  and  must  enter  into  relations  with  them.  The 
management  of  these  relations  calls  for  certain  execu- 
tive action,  which  constitutes  a  branch  of  the  general 
function  of  administration,  viz :  the  administration 
of  foreign  relations.  For  the  regulation  of  this 
branch  of  administration,  we  must  have  a  body  of 
law  which,  in  addition  to  organizing  the  executive 
force  necessary,  determines  its  duties,  and  fixes  the 
limits  of  its  action. 


ADMINIS TRA  TI VE  LA  W.  1 9 

In  the  second  place,  the  state  must  have  means  at 
its  command  to  repel  any  attempts  which  may  be 
made  against  its  existence  or  power  by  other  states, 
or  against  its  peace  and  order  by  its  own  inhabitants. 
In  other  words,  it  must  have  an  army,  and,  in  most 
cases,  a  navy.  The  executive  action  made  necessary 
by  the  existence  of  a  military  force  constitutes  an-  ^ 
other  branch  of  administration,  viz:  the  administra- 
tion of  military  affairs.  For  the  regulation  of  this 
branch  of  adminstration  again,  we  must  have  a  body 
of  law  in  accordance  with  which  the  peace  and  war 
effective  of  the  army  and  navy  are  determined,  the 
principles  of  mobilization  established,  and  the  rights 
and  duties  of  military  persons  fixed. 

In  the  third  place,  every  government  must  do 
something  to  decide  conflicts  which  arise  between  its 
inhabitants  relative  to  their  rights.  This  duty  makes 
the  existence  of  courts  necessary,  and  they  in  their 
turn  require  executive  action,  for  which  we  find  a  third 
branch  of  administration,  viz.;  the  administration  of 
judicial    affairs.      By    this    term    is    meant    not    the 


decision    by  the    courts    of  the  controversies  which 


uecisiun    uy    uiie    cuuris    ui    tiie   cuiiLruverbies    wiiicii       •s. 
may  arise,  but  the  activity  of  the  executive  organs  of       /  >4«-*-<, 
the  government  to   the  end   that   the   courts  be   in  iJ^:^ 

existence  and  in  a  position  to  discharge  their  duties.  ■ 
This  is  a  side  of  what  is  ordinarily  known  as  the  ad- 
ministration of  justice,  which,  in  most  cases,  is  easily 
distinguished  from  the  rendering  of  judicial  decisions. 
This  branch  of  administration  is  not  nearly  so 
important  in  this  country  as  on  the  continent  of 
Europe,  where  we  find  a  well  organized  department 
of  justice,  whose  duty  it  is  to  supervise  the  action  of 
the  judges,  to  call  upon  the  proper  authority  to  exer- 


r 

v.. 


20  THE  SEPARA  TION  OF  PO  WERS. 

cise  the  disciplinary  power  over  them  when  necessary, 
and  to  distribute  judicial  officers  among  the  different 
courts  in  accordance  with  the  needs  of  justice.  In 
this  country,  most  matters  of  this  sort,  outside  of  the 
appointment  to  judicial  office,  are  attended  to  either 
by  the  judges  themselves  or  by  the  legislature  which 
alone  has  the  power  to  remove  judges  from  office. 
In  some  few  instances,  as  in  New  York,  the  governor 
has  powers  of  this  character,  as,  for  example,  the 
power  to  call  extraordinary  terms  of  the  courts  and  to 
assign  judges  from  one  judicial  department  to  an- 
other in  accordance  with  the  needs  of  the  service.^ 

In  the  fourth  place,  we  have  a  branch  of  admin- 
istration known  as  the  administration  of  financial 
affairs.  Every  state  and  every  one  of  its  local  cor- 
porations must  have  property,  receipts  and  expenses. 
Inasmuch  as  its  property  is  paid  for  by  the  contribu- 
tions of  its  citizens,  which  also  form  the  major  part 
of  its  receipts,  and  inasmuch  as  the  amount  of  such 
contributions  is  determined  by  the  amountof  the  expen^ 
ditures,  it  is  particularly  necessary  that  the  actions  of 
the  administration  in  the  domain  of  finance  be  in  ac- 
cordance with  the  law,  which  often  descends  into  the 
minutest  details.  Thus  arise  a  law  of  taxation  and  a 
law  of  public  accountability,  which  are  intended  to  be 
so  formulated  as  to  insure  to  the  citizen  fair  treatment 
and  exemption  from  arbitrary  action,  and  to  force  the 
administration  to  spend  only  such  amounts  of  money 
and  for  only  such  purposes  as  the  legislature  directly 
or  indirectly  may  have  provided. 

'  By  many  the  management  of  all  penal  institutions  is  regarded  as  a  part  of 
the  administration  of  judicial  affairs.  So  far  as  that  is  so  regarded,  we  natu- 
rally have  an  administration  of  judicial  affairs  in  this  country. 


d~^ 


ADMINISTRA  TIVE  LA  W.  2 1 

The  rules  of  law  governing  the  discharge  of  public 
functions  relate,  fifthly,  to  the  administration  of  the 
internal  affairs  of  the  state.  Here  we  find  the  great- 
est difference  between  different  states ;  from  those 
states  whose  policy  is  in  the  main  to  discharge  simply 
jural  and  police  functions,  to  those  whose  laws  are 
saturated  with  the  doctrines  of  state  socialism.      But  -'n.^^ 

even  in  those  states  where  the  laisser  /aire  policy  is  ('j-M 
carried  out  most  thoroughly,  we  find  certain  internal  X/tki 
affairs  which  are  regulated  by  law.  The  laws  which  ^^^-^  ^ 
govern  these  subjects  are  of  two  kinds.  They  are7 
first,  repressive  in  character,  when  they  are  called 
police  laws.  Such  laws  attempt  to  ward  off  harm 
of  some  kind  by  imposing  restrictions  on  individual 
liberty.  They  limit,  in  many  cases,  the  right  of  asso- 
ciation, of  free  speech,  and  freedom  of  action.  Among 
the  numerous  laws  of  this  sort  may  be  mentioned  the 
whole  sanitary  and  quarantine  legislation,  the  build- 
ing laws  which  are  found  in  all  of  our  larger  cities, 
the  excise  and  theatre  legislation  in  accordance  with 
which  licenses  are  required  before  the  business  of 
selling  liquor  by  the  glass  to  be  drunk  on  the  premi- 
ses may  be  carried  on,  or  a  theatrical  enterprise  may 
be  conducted,  and  those  numerous  laws  which,  like 
those  requiring  an  inspection  of  steam  boilers  and  the 
licensing  of  engineers  and  pilots,  are  intended  to  pro- 
tect the  public  safety. 

The  second  class  of  laws  governing  the  adminstra- 
tion  of  internal  affairs  directly  furthers  the  public 
welfare  by  offering  to  the  individual  the  means  of 
satisfying  his  various  wants,  either  material  or  intel- 
lectual. Thus  we  find  the  highway,  railway,  postal, 
and  telegraph  legislation,  which  provides  for  the  con- 


32 


THE  SEPARATION  OF  POWERS. 


J 


'J- 


struction,  maintenance,  and  operation  of  means  of 
public  communication  ;  the  poor-law  legislation,  which 
provides  for  a  system  of  public  charity  ;  and  the  school 
law,  which  offers  to  citizens  an  opportunity  to  educate 
their  children  of  which,  in  most  cases,  they  are  obliged 
by  law  to  avail  themselves. 

The  treatment  of  none  of  these  subjects  of  adminis- 
trative law  would,  however,  be  complete  and  exhaustive 
if  it  did  not  devote  considerable  space  to  the  subject 
of  the  remedies  offered  to  individuals  against  the 
arbitrary  action  of  the  officers  of  the  government  in 
the  application  of  the  administrative  law.  In  all 
branches  of  administrative  law,  but  particularly  in 
those  in  which,  like  tax  and  police  legislation,  the 
government  steps  in  to  abridge  private  rights,  some 
means  must  be  provided  for  preventing  the  admin- 
istration from  overstepping,  even  in  the  interest  of 
the  public  welfare,  the  bounds  of  individual  freedom 
which  have  been  fixed  by  the  law.  In  many  cases 
the  administrative  law  finds  adequate  remedies  by 
making  use  of  ordinary  judicial  machinery,  and  by 
applying  to  officers  of  administration  the  ordinary 
rules  of  law — as,  for  example,  when  it  provides  that 
the  government  in  its  central  or  local  organizations 
shall  be  liable  to  suit,  or  that  officers  who  exceed 
their  jurisdiction  may,  in  the  proper  cases,  be  prose- 
cuted either  civilly  or  criminally.  In  a  great  many 
cases,  however,  adequate  remedies  will  not  be  pro- 
vided by  applying  to  the  government  or  its  officers 
the  ordinary  rules  of  law.  For  these  cases  there 
must  be  formed  a  special  jurisdiction  of  some  sort. 
This  is  done  in  two  ways.  Either  the  ordinary  courts 
are  given  the  power  to  apply  special  remedies,  or  spe- 


ADMINISTRATIVE  LAW.  \)        %r'"»--''Ct^ 

cial  courts  are  formed  for  the  exercise  of  this  jurisdic- 
tion. While  instances  of  both  methods  are  to  be 
found  in  the  United  States,  the  rule  is  that  the  ordi- 
nary courts  have  a  special  jurisdiction,  by  the  exercise 
of  which,  on  the  demand  of  individuals,  they  are  able 
both  to  hold  the  administration  up  to  its  duty  and  to 
preserve  intact  the  sphere  of  individual  freedom  guar-  ^_^ 

anteed  by  the  law.  The  special  courts  found  in  this  ^^***-''^^'^'^-^^ 
country  are  quite  rare.  Instances  of  them  are  the 
United  States  Court  of  Claims  and  the  Board  of 
General  Appraisers  in  the  national  customs  adminis- 
tration, which  have  jurisdiction  respectively  over  cer- 
tain claims  against  the  United  States  government, 
and  over  contests  with  regard  to  the  classification"^ 
and  appraisement  of  merchandise  in  accordance  with 
the    provisions   of   the    customs   administrative    law.  / 

Among  the  special  remedies  applied  by  the  courts^ /»       

are  the  extraordinary  legal  remedies — viz  :  the  man-  ^^--^-^-t?^ 
damus,  the  certiorari,  the  quo  warranto,  the  prohibit  ^^>-^  ^L^>^ 

which,  in  a  proper  case,  will  be  made  use  of  to  re-  /r-^-^-ctuy 
strain  the  action  of  public  officers  where  such  action 
is  not  justified  by  the  law.  While  some  of  these 
remedies,  as,  for  example,  the  habeas  corpus  and  the 
injunction,  are  remedies  of  the  private  law  as  well, 
most  of  them  are  essentially  public  legal  remedies, 
and  may  be  made  use  of  only  when  questions  of  pub- 
lic law  are  to  be  determined.  In  addition  to  these 
remedies,  which  are  a  part  of  the  common  law,  vari- 
ous statutes  have  provided  special  remedies  in  par- 
ticular cases,  in  the  nature  of  appeals  to  the  courts 
from  the  decisions  of  administrative  officers. 


tion,  the  habeas  corpus,  and  certain  of  the  equitabled 
remedies,    notable   among   which    is    the    injunction, 

\     7  / 


CHAPTER   IIL 

THE    THEORY    OF    THE    SEPARATION    OF    POWERS. 

The  attempt  made  in  England,  as  a  result  of  the 
struggles  of  the  revolutionary  movements  of  the 
seventeenth  century,  to  separate  the  functions  which 
have  been  spoken  of  as  politics  and  administration, 
and  to  entrust  the  discharge  of  each  of  these  func- 
tions to  a  separate  governmental  authority,^  combined 
with  the  independence  accorded  to  the  courts,  to 
which  allusion  has  been  made,  led  the  great  French 
political  philosopher  Montesquieu  to  the  formulation 
of  his  famous  theory  of  the  separation  of  powers. 
In  his  Esprit  des  Lois'^  he  distinguished  three  powers 
of  government,  which  he  called  respectively  the 
legislative,  the  executive,  and  the  judicial.  This 
differentiation  of  three  rather  than  two  governmental 
functions,  was  probably  due  to  the  fact  that  Montes- 
quieu's theory  was,  as  has  been  indicated,  derived  very 
largely  from  a  study  of  English  institutions.  Eng- 
land was  almost  the  only  country  of  the  civilized 
world  which,  at  the  time  he  wrote,  made  a  distinction 
in  its  governmental  organization  between  the  execu- 
tive and  judicial  authorities.  This  was  made  finally 
by  the  Act  of  Settlement  in  1701,  which  prevented 
the  Crown  from  removing  the  judges  except  upon 

'  On  this  point  see  Ford,  op.  cit.,  p,  28.  "  Book  xi.,  chap.  iv. 

24 


THEORY  OF  SEPARATION  OF  POWERS.        25 

the  address  of  Parliament.^  It  was  only  natural  that 
Montesquieu  should  find  in  this  independence  of  the 
judiciary  the  recognition  of  a  judicial  power  separate 
from,  and  independent  of,  the  executive  power. 

If,  however,  Montesquieu  had  carried  his  researches 
further,  he  would  have  seen  that  the  existence  of  this 
third  function  of  government,  i.  e.,  the  judicial  power, 
could  not  be  proven  by  the  mere  fact  of  the  inde- 
pendence of  the  judges.  A  study  of  the  powers  of 
the  judges  of  the  higher  courts,  and  particularly  of 
the  powers  of  the  justices  of  the  peace,  would  have 
shown  conclusively  that  English  political  ideas  were 
not  reconcilable  with  the  existence  of  three  separate 
powers  or  functions  of  government.  The  laws  were 
often  executed  by  authorities  which  at  the  same  time 
administered  justice.  Administrative  and  judicial 
authorities  were  not  nearly  so  clearly  distinguished 
in  England  as  Montesquieu  seems  to  have  thought.^ 

Montesquieu's  theory  involved,  however,  not  merely 
the  recognition  of  three  separate  powers  or  functions 
of  government,  but  also  the  existence  of  separate 
governmental  authorities,  to  each  of  which  one  of  the 
three  powers  of  government  was  to  be  entrusted. 
This  part  of  the  theory  has  been  proven  to  be  impos- 
sible of  application  to  concrete  political  organizations. 
No  political  organization,  based  on  the  general  theory 
of  the  separation  of  powers,  has  ever  been  established 

'  The  Esprit  des  Lois  appeared  in  1748. 

'  Montesquieu's  theory  of  the  existence  of  three  powers  or  functions  of  gov- 
ernment is  not  finally  accepted  by  the  modern  political  philosophy  of  his  own 
country.  As  one  of  the  great  writers  on  French  administrative  law,  M.  Du- 
crocq,  says:  "The  mind  can  conceive  of  but  two  powers — that  which  makes 
the  law,  and  that  which  executes  it.  There  is  no  place,  therefore,  for  a  third 
power  by  the  side  of  the  first  two." — See  Cours  de  Droit  Administratif,  6th  ed.. 
1881,  vol.  i.,  p.  27. 


26  THE  SEPARATION  OF  POWERS. 

which  assigns  the  discharge  of  each  of  the  great 
governmental  functions  distinguished  by  this  theory 
exclusively  to  one  governmental  authority.  It  is  im- 
possible, for  several  reasons,  to  make  such  an  assign- 
ment of  functions. 

In  the  first  place,  it  is  impossible  to  arrive  at  clear 
definitions  of  legislative,  executive,  and  judicial  power 
in  accordance  with  which  specific  powers,  which  it  is 
desirable  should  be  exercised,  may  be  unquestionably 
denominated  as  legislative,  executive,  or  judicial.^ 

In  the  second  place,  it  is  inexpedient  to  confine  the 
exercise  of  what  is  unquestionably  legislative  power 
to    one   governmental   authority.      Thus  it  is  often 
highly  desirable  that  the  courts  shall  have  the  power 
to  make  law  through  their  power  of  declaring,  in  their 
decisions,  what  is  often  spoken  of  as  the  unwritten 
-^law.     Thus  aofain  it  is  desirable  that  the  executive 
^^.^-^     authorities  shall  have  the  power,  through  the  issue  of 
what  are  known  as  ordinances  or  regulations,  either 
to  supplement  existing  statutes  or  lay  down  the  law 
r  as  to  details  not  regulated  by  such  statutes. 

^'"^  Finally,  as  political  systems  develop,  the  authorities 

of  government  become  differentiated.  To  each  of 
these  differentiated  authorities  it  is  attempted  to  en- 
trust some  portion  of  one  of  what  may  be  called  the 
primary  functions  of  government.  Thus  the  expres- 
sion of  the  will  of  the  state  on  certain  subjects  may 

'  See  the  remarks  of  a  judge  of  the  Supreme  Court  of  North  Carolina,  who 
says  in  Brown  vs.  Turner,  70  N.  C,  93,  102,  that  while  "the  executive,  legsi- 
lative,  and  supreme  judicial  powers  of  the  government  ought  to  be  forever 
separate  and  distinct,  it  is  also  true  that  the  science  of  government  is  a  practical 
one  ;  therefore,  while  each  should  firmly  maintain  the  essential  powers  belong- 
ing to  it,  it  cannot  be  forgotten  that  the  three  co-ordinate  parts  constitute  one 
brotherhood,  whose  common  trust  requires  a  mutual  toleration  of  what  seems 
to  be  a  '  common  because  of  vicinage'  bordering  on  the  domains  of  each." 


^ 


THEORY  OF  SEPARATION  OF  POWERS.        27 

be  entrusted  to  a  constitutional  convention  and  not 
to  the  legislature. 

But  while  Montesquieu's  principle  of  the  separation , 
of  powers  is  not  capable  of  application  in  its  pure  form 
to  concrete  political  organizations,  at  the  same  time 
this  theory  lies  at  the  basis  of  most  well-developed 
existing  political  systems.  In  most  such  systems, 
however,  many  exceptions  have  been  made  to  the 
theory.  The  exceptions  which  are  thus  made  to  the 
theory  are  not  the  same  in  the  different  states  which 
have  endeavored,  in  a  general  way,  to  apply  the 
theory.  Even  from  the  point  of  view  merely  of 
political  theory,  there  is  no  agreement  as  to  what  the 
theory  means  in  its  detailed  application.  This  lack 
of  agreement,  however,  occasions  no  particular  diffi- 
culty, so  long  as  the  discussion  is  carried  on  from  the 
point  of  view  of  what  ought  to  be.  But  just  so  soon 
as  the  general  theory  is  formulated  as  a  legal  prin- 
ciple, just  so  soon  as  it  becomes  a  part  of  the  positive 
law,  the  difficulties  that  arise  are  legion  and  appear 
to  be  insurmountable. 

Such  difficulties  do  not,  of  course,  arise  where  a 
clear  statement  is  made  as  to  what  powers  a  particu- 
lar authority  in  the  government  may  exercise.  For 
however  inconsistent  such  a  statement  may  be  with 
the  general  principle  which  is  supposed  to  be  at  the 
basis  of  the  government,  still  it  will  control,  since  it, 
and  not  the  general  theory,  is  the  law.  It  is  only 
when,  in  addition  to  what  is  provided  by  such  a  state- 
ment, the  general  theory  is  made  the  law,  that  the 
difficulty  alluded  to  will  arise. 

Before  taking  up  the  law  of  the  separation  of 
powers  as  it  has  been  developed  by  the  courts  in  the 


28  THE  SEPARATION  OE  POWERS. 

United  States,  which  has  made  the  general  theory  a 
part  of  its  pubHc  law,  it  may  be  well  to  take  up  the 
exceptions  to  the  general  theory  which  are  made  in 
the  written  constitutions.  We  may  consider,  in  the 
first  place,  the  executive  functions  of  the  legislature, 
and,  in  the  second  place,  the  legislative  functions  of 
the  executive  authorities.  It  is  unnecessary  for  our 
purpose,  which  is  to  ascertain  what  are  the  powers  of 
the  authorities  which  execute  the  laws,  to  inquire  as 
to  what  are  the  judicial  functions  of  the  legislature, 
or  what  are  the  legislative  functions  of  the  judicial 
authorities.  Nor  need  we  consider  in  this  connection 
the  judicial  functions  of  executive  authorities,  nor  the 
executive  functions  of  judicial  authorities.  So  far  as 
these  authorities  may  possess  any  such  functions,  they 
possess  them  as  a  result  of  a  failure,  in  the  infrequent 
particular  instances  in  which  they  occur,  to  distinguish 
between  judicial  and  executive  action.  This  failure, 
it  may  well  be,  is  due  to  the  theoretical  impossibility 
of  making  any  such  distinction,  to  which  allusion  has 
already  been  made. 

/. — Executive  fu7ictions  of  the  legislature. 

Legislatures  very  commonly  exercise  powers  which 
from  the  point  of  view  of  the  theory  of  the  separation 
of  powers  are  executive  rather  than  legislative  in 
character.  Legislative  power  is  commonly  regarded 
as  the  power  to  lay  down  general  rules  of  conduct 
for  the  persons  subject  to  the  obedience  of  the  state. 
From  this  point  of  view,  the  action  of  the  legislature 
in  regulating  individual  cases  through  the  passage  of 
"  special  legislation,"  as  it  is  called,  and  in  appoint- 
ing and  removing,  or  in  participating  in  the  appoint- 


^^>C^uCk 


THEORY  OF  SEPARATION  OF  POWERS. 


ment  and  removal  of  officers,  is  not  legislative  in  -^'^-c^  ^ 
character.  Still  most  legislatures  possess  all  or  most  ^^Q  -». 
of  these  powers.  Most  American  constitutions  pro- 
vide that  some  of  these  powers,  at  any  rate,  shall  be 
exercised  only  with  the  consent  of  the  legislature,  or 
vest  in  the  legislature  alone  the  right  to  exercise 
such  powers.  The  reason  those  constitutions  vest 
such  powers  in  the  legislature  is  largely  the  necessity 
of  providing  a  means  by  which  administration  may  be 
subjected  to  the  control  of  politics.  This  is  particu- 
larly true  of  the  financial  powers  of  the  legislature 
and  of  its  powers  relative  to  the  appointment  and  re- 
moval of  officers. 

{I. — Legislative  functions  of  the  exeaitive  authority. 

The  executive  power  is  usually   regarded   as   the      , 
power  to  execute  rules  of  conduct  laid  down  by  the  ,'  ,  f^ 

legislature.     The   executive  authority,    however,    by  — 


most  American  constitutions,  has  the  power  to  initi-  /cc 
ate  legislation   by  sending  recommendations   to  the  ^Ct^x:^ 
legislature,  the  power  to  disapprove  bills  passed  by.-'^.^ 
the  legislature,   in  which  case  such  bills  do  not  be-         V 
come  law  unless  passed  again  by  the  legislature,  and 
the  power  of  issuing  ordinances,  which  either  are  sup- 
plementary to  existing  legislation  or  regulate  matters 
not  regulated  by  such  legislation. 

Such  powers  are  given  to  the  executive  authority 
expressly  by  most  American  constitutions,  although 
in  other  respects  such  constitutions  may  be  based  on 
the  theory  of  the  separation  of  powers.  The  reason 
why  executive  authorities  have  these  legislative 
powers  is  in  ultimate  analysis  the  same  as  the  reason 
why   the    legislature    has    executive    powers.       This 


0 


30  THE  SEPARATION  OF  POWERS. 

reason  in  the  case  of  the  legislature  is  that  politics 
may  have  a  control  over  administration  ;  in  the  case  of 
the  executive  authority,  that  administration  may  have 
an  influence  over  politics.  It  is  only  by  the  interac- 
tion of  this  control  and  influence  that  we  can  secure 
that  harmony  between  politics  and  administration, 
between  the  making^  and  the  enforcement  of  the  law, 
j^^  f  which  lies  at  the  basis  of  orderly  and  effective 
government. 

It  has  already  been  pointed  out  that  this  result 
need  not  be  due  entirely  to  enactment  of  law,  but 
where  it  is  not,  where,  for  example,  a  power  of  initia- 
ting legislation  may  not  be  granted  expressly  by  the 
constitutional  system,  it  may  be  secured  in  other 
ways.^  But  in  all  political  systems  the  attempt  is 
made  to  secure  this  result,  either  by  the  operation 
of  law  or  by  the  adoption  of  extra-legal  political 
practices. 

1  Supra,  p.  14, 


,*-^ 


r^ 


CHAPTER  IV. 

THE    THEORY    OF   THE   SEPARATION    OF  POWERS    IN    THE 

UNITED    STATES. 

/. —  The  theory  a  part  of  the  American  public  law. 

It  has  already  been  intimated  that  Montesquieu's 
theory  of  the  separation  of  powers  was  made  the 
basis  of  the  system  of  government  adopted  in  the 
United  States  at  the  end  of  the  eighteenth  century. 
A  perusal  of  the  writings  of  those  men  who  in- 
fluenced most  profoundly  the  political  thought  of  the 
time  will  reveal  a  practically  unanimous  acceptance 
of  the  theory.^ 

The  theory  was  accepted  not,  however,  as  a  scien- 
tific theory  but  as  a  legal  rule.  Many  of  the  state 
constitutions,  which  either  were  adopted  soon  after 
the  American  revolution  or  have  been  put  into  force 
since,  contain  clauses  known  as  "  distributine  clauses," 
of  which  that  contained  in  the  constitution  of  Massa- 
chusetts may  be  taken  as  a  most  forcible  example. 
Article  30  of  the  first  constitution  of  Massachusetts 
provides  that  "in  the  government  of  this  common- 
wealth the  legislative  department  shall  never  exercise 
the  executive  or  judiciary  powers  or  "either  of  them  ; 

'  Bondy,  "The  Separation  of  Powers,"  Columbia  University  Series  in  HiS' 
tory.  Economics  and  Public  Law,  v.,  No.  2. 

31 


3 if  THE  SEPARATION  OF  POWERS. 

the  executive  shall  never  exercise  the  leofislative  or 
judiciary  powers  or  either  of  them  ;  the  judiciary  shall 
never  exercise  the  legislative  or  executive  powers  or 
either  of  them,  to  the  end  that  it  may  be  a  govern- 
ment of  laws  and  not  of  men."  Other  constitutions, 
of  which  the  constitution  of  the  United  States  is 
one,  provide  that  the  legislative  power  shall  be  vested 
in  a  legislature,  that  the  executive  power  shall  be 
vested  in  a  President  or  governor,  and  that  the  ju- 
dicial power  shall  be  vested  in  certain  courts.^  Such 
provisions,  however,  are  held  to  have  practically  the 
same  legal  effect  as  the  distributing  clause  in  the 
Massachusetts  constitution,  on  the  theory  that  "  affir- 
mative words  are  often,  in  their  operation,  negative 
of  other  objects  than  those  affirmed."  ~' 

As  a  result  of  these  constitutional  provisions,  it  is 
said  by  the  United  States  Supreme  Court,  Justice 
Miller  giving  the  opinion, 

"  that  all  the  powers  entrusted  to  government,  whether  state  or 
national,  are  divided  into  the  three  grand  departments,  the  execu- 
tive, the  legislative,  and  the  judicial.  That  the  functions  appro- 
priate to  each  of  these  branches  of  government  shall  be  vested 
A-'*'  t  J-*-''  in  a  separate  body  of  public  servants,  and  that  the  perfection  of 
the  system  requires  that  the  lines  which  separate  and  divide 
these  departments  shall  be  broadly  and  clearly  defined.  It  is 
also  essential  to  the  successful  working  of  this  system  that  the 
persons  intrusted  with  power  in  any  one  of  these  branches  shall 
not  be  permitted  to  encroach  upon  the  powers  confided  to  the 
others,  but  that  each  shall  by  the  law  of  its  creation  be  limited 
to  the  exercise  of  the  powers  appropriate  to  its  own  department 
and  no  other." ' 

It  is,  however,  to  be  noticed  that  the  provisions  of  the 

'  Cf.  U.  S.  Constitution,  art.  i.,  sec.  i;  art.  ii.,  sec.  i;  art.  iii.,  sec.  L 
*  Marbury  vs.  Madison,  i  Cranch,  137,  174. 
'  Kilbourn  vs.  Thompson,  103  U.  S.,  168,  iqo. 


^ 


1^- 


THE  LEGAL  THEORY.  33 

United    States    constitution   to  which  reference  has 
been  made  do  not   in  any  way  affect  the   states  in^ 
this  respect, — do  not,  for  example,  forbid  a  state  legis- 
lature from  exercising  judicial  power.^ 

//. —  The  meaning  of  the  rule  in  American  law. 

While  it  is  a  rule  of  American  public  law  that  the 
powers  of  government  which  are  distinguished  by 
the  constitution  are  distributed  among  the  legisla- 
tive, executive,  and  judicial  departments  of  the  gov- 
ernment, hardly  any  American  constitution  defines 
any  one  of  these  three  powers  of  government.  An 
examination  of  the  constitution,  therefore,  does  not 
enlighten  us  as  to  the  exact  meaning-  of  the  rule. 
We  must  go  to  the  decisions  of  the  courts  made  in 
their  interpretation  of  the  constitution  if  we  would 
know  whether  the  exercise  of  a  specific  power  by  any 
one  of  the  departments  of  government  is  permitted  -^ 
under  a  particular  constitution. 

When  we  do  so  examine  the  decisions  we  find  that 
they  are  often  conflicting  as  to  specific  powers 
government.^  In  order,  therefore,  that  the  student 
may  know  what  the  legal  meaning  of  the  principle  of 
the  separation  of  powers  is  in  a  given  state  of  the 
American  Union,  he  must  examine  the  decisions  of 
the  courts  of  that  state.  This  is  extremely  important. 
For  the  effect  of  the  adoption  of  a  particular  view 
of  the  separation  of  powers  by  the  courts  of  a  state 
is  that  all  attempts  of  any  governmental  authority  to 

'  Satterlee  vs.  Matthewson,  2  Peters,  380,  413  ;  Calder  vs.  Bull,  3  Dallas, 
386. 

^  See  remarks  of  Judge  Christiancy,  in  People  vs.  Hurlbut,  24  Michigan, 
44,  63,  where  he  frankly  admits  that  the  different  powers  of  government  differ 
in  extent  in  different  states. 


5< 


34  THE  SEPARATION  OF  POWERS. 

exercise  powers  whose  exercise  is  inconsistent  with 
that  view,  are  unconstitutional  and  void.^  ^ 

But  while  there  is  conflict  of  opinion  as  to  concrete 
points  there  are  certain  general  principles  which  the 
courts  of  most  of  the  states  are  inclined  to  apply. 
Thus  it  may  be  laid  down  : 

First.  That  the  action  of  any  one  of  the  depart- 
ments of  the  government  must,  in  order  to  partake 
of  the  nature  of  the  department  so  as  to  satisfy  the 
provision  ^  of  the  constitution  requiring  a  separation 
of  powers,  be  completely  independent  of  the  influence 
and  control  of  any  other  department.  Take,  for  ex- 
ample, the  case  of  Gordon  vs.  United  States."  Here 
the  Congress  of  the  United  States  passed  a  law  pro- 
vidinor  for  a  Court  of  Claims  which  should  have 
jurisdiction  of  certain  complaints  which  individuals 
mio^ht  have  to  make  aofainst  the  national  sfovernment. 
The  act  provided  for  an  appeal  from  the  judgment 
of  the  Court  of  Claims  in  certain  cases  to  the  Su- 
preme Court  of  the  United  States,  and  added  that 
the  judgment  should  be  paid  when  it  had  been  re- 
vised by  the  Secretary  of  the  Treasury.  When  the 
first  case  came  up  to  the  Supreme  Court  on  appeal, 
that  body  held  that  it  could  not  take  jurisdiction  in- 
asmuch as  it  was  vested  by  the  constitution  only  with 
judicial  powers,  and  the  decision  of  an  appeal  from 
the  determination  of  the  Court  of  Claims  was  not  an 
exercise  of  judicial  power  since  such  determination 
was  not  conclusive,  but  might  be  revised  by  an  execu- 
tive officer.^  > 


'  E.  g.,  see  Gordon  vs.  U.  S.,  117  U.  S.,  697.  «  117  U.  S.,  697. 

'  See  also  as  to  the  power  of   the  courts  to  review  the  distinctly  executive 
action  of  the  President  and  governor,  infra,  p.  92,  and  cases  cited. 


THE  LEGAL   THEORY.  35 

The  only  exceptions  to  this  general  rule  that  each 
department  is  to  be  independent  of  the  others  are  to 
be  found  in  those  cases  where  appeal  is  made  to  the 
courts  to  apply  or  construe  an  act  of  the  legislature 
or  an  act  of  the  executive.  In  these  cases,  if  the 
courts  deem  that  such  acts  are  not  in  accordance  with 
the  higher  law  of  the  land,  in  the  one  case  the  con- 
stitution and  in  the  other  case  the  statute  law,  they 
do  not  hesitate  to  refuse  to  enforce  such  acts  on  the 
theory  that  they  are  legally  void  and  of  no  effect. 
In  this,  their  action,  the  courts  do  not  claim  to  be 
exercising  a  control  over  other  departments  of  the 
government,  but  merely  to  be  exercising  their  right 
to  judge  of  what  is  law,  and  to  apply  only  what  they 
consider  to  be  law.  This  rule  of  law  was  not,  how- 
ever, adopted  so  far  as  concerns  the  relation  of  the 
courts  to  legislation  without  a  long  struggle.^ 

Second.  The  principle  of  the  separation  of  powers 
does  not  apply  to  the  local  governments.  Perhaps  >^T 
as  good  a  case  as  can  be  found  on  this  point  is  the 
case  of  the  People  vs.  Provines.^  The  facts  of  the 
case  were  as  follows  :  The  constitution  of  California 
provided  in  article  iii.  that  no  one  exercising  judicial 
powers  might  exercise  executive  powers.  A  police 
judge  of  the  city  of  San  Francisco  was  elected  police 
commissioner  by  the  people  of  San  Francisco  and 
entered  upon  the  performance  of  the  duties  of  his 
office.  Information  in  the  nature  of  a  quo  warranto 
was  brought  against  him  by  the  attorney-general  to 
oust  him  from  the  office  of  police  commissioner,  into 
which,  it  was  claimed,  he  had  entered  contrary  to 
the  provisions  of  the  constitution.     When  the  matter 

'  See  Bondy,  op.  cit.,  p.  52.  '34  Cal.,  520. 


€^ 


36  THE  SEPARATION  OF  POWERS. 

came  before  the  court  which  reviewed  all  the  other 
cases  decided  upon  this  point  in  California  and  ac- 
tually overruled  several  of  such  cases,  it  was  held 
that  the  distributing  clause  of  the  California  con- 
stitution applied  only  to  the  state  government,  and 
did  not  provide  for  any  separation  of  powers  in  the 
local  governments.^ 

The  confinement  of  the  application  of  the  principle 
of  the  separation  of  powers  to  the  central  government 
has  for  its  result : 

I.  That  the  legislature  may  constitutionally  confer 
powers  local  in  their  application  whatever  may  be 
the  theoretical  nature  of  such  powers  upon  {a)  organs 
of  the  central  government  or  {U)  upon  any  local 
authority,  and  that  in  case  it  does  so  such  powers  do 
not  partake  of  the  nature  of  the  body  upon  which 
they  may  be  conferred. 

{a)  Thus  the  courts  have  frequently  held  that  the 
legislature  may  vest  in  the  courts  the  power  to  de- 
termine whether  the  limits  of  a  local  corporation 
shall  be  extended  ^  or  a  proposed  local  improvement 
shall  be  undertaken.^  It  has  also  been  held  that  acts 
of  a  local  character  regarded  by  the  courts  as  admin- 
istrative do  not  become  judicial  when  performed  by 
the  courts.  Thus  where  an  appeal  is  allowed  only 
from  a  judgment  of  a  court,  appeal  will  not  run  from 
a  local  act  which  is  merely  administrative  in  character.^ 

{b)   It  has  also  been  held  in  numberless  cases  that 

'  See  also  State  vs.  George,  22  Oregon,  142  ;  and  Fox  vs.  McDonald,  loi 
Ala.,  51. 

'  Callen  vs.  Junction  City,  43  Kan.,  627.  But  see  Territory  vs.  Stewart, 
I  Washington,  98,  which  takes  the  opposite  view. 

^  Bryant  vs.  Robbins,  70  Wis.,  258. 

''Auditor  General  vs.  Pullman  Co.,  34  Mich.,  50.  % 


THE  LEGAL  THEORY.  37 

the  legislature  may  authorize  local  corporations  both 
to  pass  ordinances  of  a  local  police  character^  and  to 
put  into  effect  in  the  territory  of  the  local  corporation 
acts  passed  by  the  legislature  of  the  state." 

2.  The  legislature  may  authorize  local  officers  to 
exercise  certain  powers  belonging  to  the  state  re- 
gardless of  the  fact  that  the  character  of  the  authority 
to  which  the  exercise  of  the  power  is  given  is  not  the 
same  as  that  of  the  power  granted.  This  is,  however, 
true  only  of  certain  powers,  and  the  principle  has 
been  upheld  only  on  the  ground  that  historically  local 
authorities  have  always  exercised  such  powers  and 
that  the  principle  of  the  separation  of  powers  was 
adopted  subject  to  historical  practice.  Thus  it  ia 
very  generally  held  that  the  legislature  may  give  to 
the  mayors  of  cities,  who  are  not  a  part  of  the  judicial 
department,  jurisdiction  over  cases  arising  under  the 
laws  of  the  state,  even  of  crimes,  notwithstanding  the 
fact  that  the  constitution  may  vest  the  judicial  power 
in  the  judicial  department.'^ 

Third.  Each  of  the  departments  of  government 
may  exercise  all  those  powers  whose  exercise  is  neces- 
sary to  its  independence.  There  is  a  certain  class 
of  powers  which  must  of  necessity  be  exercised  by 
every  one  of  the  departments,  such,  for  example,  as 
the  power  of  appointment.  If  any  one  of  the  depart- 
ments  is   to   be  expected  to  be  independent  of  the 

'  Mayor  of  Mobile  vs.  Yuille,  3  Ala.,  137. 

'  See  Oberholtzer,  The  Referendum  in  America,  chapter  xiii.  ;  Wales  vs. 
Belcher,  3  Pickering,  Mass.,  508  ;  Burgess  vs.  Pue,  2  Gill,  Md.,  ii;  Bancroft 
vs.  Dumas,  21  Vt.,  456. 

"^  Ex  parte  Slattery,  3  Ark..  485  ;  Danbury  vs.  Bird,  34  Iowa,  524;  Baton 
Rouge  vs.  Bearing,  15  La.  An.,  20S  ;  but  see  Hagerstown  vs.  Dechert,  32  MA- 
369. 


38  THE  SEPARATION  OF  POWERS. 

Others,  it  must  have  the  power  to  appoint  its  subordi- 
nates.    The  legislature  may  thus  appoint  all  its  sub- 
'  ^  ordinate  officers,  while  courts  may  appoint  such  officers 

as  criers  and  others  who  are  necessary  in  order  that 
the  courts  may  perform  their  duties  properly.  This  is 
so  notwithstanding  the  fact  that  the  power  of  appoint- 
ment may  be  regarded  as  more  properly  an  adminis- 
trative or  executive  power  than  a  judicial  or  legislative 
one.^  In  case  the  courts  or  the  legislature  exercise  such 
a  power  of  appointment,  it  has  been  held  that  the  act 
of  appointment  does  not  lose  its  distinctively  execu- 
tive character.^  In  case  an  appointment  is  made  by  a 
^  local  legislative  body,  such  appointment  does  not  be- 
come a  legislative  act,  and  therefore  may  not  be 
reconsidered.^ 

The  question  has  in  some  cases  arisen  as  to  whether 
the  power  to  appoint  other  officers  than  those  neces- 
^U>...  i,  sary  to  the  independence  of  a  department  can  be 
given  to  a  department  other  than  the  executive.  This 
question  has  come  up  particularly  in  regard  to  the 
power  of  the  legislature  to  make  appointments  of  other 
than  its  subordinate  officers.  The  question  is  some- 
what complicated  by  the  fact  that  there  has  been  quite 
universally  inserted  into  the  commonwealth  constitu- 
tions a  provision  which  declares  that  the  governor  shall 
nominate  and  by  and  with  the  consent  of  the  senate 
appoint  all  officers  whose,  offices  are  established  by 
the  constitution  or  shall  be  created  by  the  law  and 
whose  appointment  or  election  is  not  otherwise  pro- 

'  State  vs.  Noble,  ii8  Ind.,  350  ;  State  vs.  Barbour,  53  Conn.,  76,  85  ;  Ach- 
ley's  Case,  4  Abbott's  Practice,  35;  In  re  Janitor,  35  Wis.,  410;  State  vs. 
Smith,  15  Mo.,  App.,  412. 

'  See  Auditor  General  vs.  Pullman  Co.,  34  Mich.,  59. 

*  State  vs.  Barbour,  53  Conn.,  76. 


THE  LEGAL  THEORY.  39 

vided  for.  The  decisions  of  the  courts  as  to  the  pos- 
session by  the  legislature  of  a  power  of  appointment 
are  in  irreconcilable  conflict.  Some  have  held  that 
the  power  of  appointing  officers  other  than  the  sub- 
ordinates of  the  department  making  the  appointment 
is  essentially  an  executive  power,  and  therefore  can- 
not be  exercised  by  the  legislature  ;  that  while  the 
legislature  has  the  right,  either  as  a  result  of  its  gen- 
eral powers  or  as  a  result  of  the  specific  constitutional 
provision  referred  to,  to  regulate  the  manner  in  which 
an  office  is  to  be  filled,  since  such  regulation  is  a  legis- 
lative act,  it  does  not  have  the  right  to  put  a  man  into 
a  given  place,  inasmuch  as  this  is  an  executive  act  and 
may  not  therefore  be  performed  by  the  legislature.^ 
The  majority  of  decided  cases  have  adopted  the  view, 
however,  that  the  general  power  of  appointment  may 
be  exercised  by  the  legislature.  The  logical  basis  for 
such  a  view  would  seem  to  be  that  executive  power 
under  the  constitution  is  of  an  extremely  limited 
nature,  and  is  not  intended  to  include  all  powers  usu- 
ally designated  as  executive  by  constitutional  writers, 
but  is  to  embrace  only  those  powers  which  are  stated 
in  the  constitution  itself  to  belong-  to  the  executive. 
The  enumeration  of  the  specific  powers  to  be  exer- 
cised by  the  executive  is  by  these  cases  regarded  as  a 
limitation  and  definition  of  the  general  grant  to  the 
executive  of  the  executive  power.'  Where  such  an 
interpretation  is  given  to  the  distributing  clause  in 
the  constitution,  a  constitutional  provision,  which 
would  seem  to  give  to  the  governor  the  power  of  ap- 
pointment and  to  the  legislature  the  right  to  designate 

'  See  State  vs.  Denny,  ii8  Ind.,  382  ;  see  also  State  vs.  Hyde,  121  Ind.,  ao. 
"^  Field  vs.  People,  3  111.,  79,  no. 


40  THE  SEPARA  TION  OF  PO  WERS. 

the  manner  in  which  offices  shall  be  filled,  permits  the 
legislature  not  only  to  prescribe  the  way  in  which 
offices  shall  be  filled  but  also  to  desig-nate  the  aeent 
or  person  who  shall  be  appointed.^  Undoubtedly 
one  of  the  reasons  for  such  a  decision  is  that,  if  the 
executive  has  only  such  powers  as  are  specifically 
granted  to  him,  the  legislature  has,  as  a  result  of  its 
position  as  the  one  authority  of  general  powers  in  our 
government,  the  power  to  do  anything  which  it  has 
not  been  forbidden  to  do,  and  which  has  not  been 
specifically  entrusted  to  some  other  authority. 

The  same  question  has  also  come  up  with  regard 
to  the  courts.  It  has  been  held  that  the  legislature 
may  authorize  the  courts  to  appoint  such  officers  as 
bridge  commissioners  and  inspectors  of  elections,  i.  e., 
officers  having  nothing  whatever  to  do  with  the  ad- 
ministration of  justice.^  On  the  other  hand,  in  Mas- 
sachusetts and  Michigan  the  contrary  rule  has  been 
adopted.^ 

The  power  of  removal  has  also  caused  some  trouble. 
It  is  not  regarded  as  possessed  by  the  executive  as  a 
result  of  the  grant  to  him  of  the  executive  power  by 
the  constitution.  Where  it  is  not  expressly  or  impli- 
edly provided  that  the  governor  may  remove  an  offi- 
cer, such  officer  may  be  declared  to  have  forfeited  or 
abandoned  his  office  only  as  the  result  of  a  judgment 
of  a  court.^     This  rule  is  not,  however,  applied  to  the 

'  See  People  vs.  Freeman,  22  Pacific  Reporter,    173  ;    see  also  State  vs. 
Keenan,  7  Ohio  St.,  546. 
'State  vs.  George,  22  Oregon,  142  ;  People  vs.  Hoffmann,  116  111.,  587. 

*  Supervisors  of  Elections,  114  Mass.,  249;  Houseman  vs.  Montgomery,  58 
Mich.,  364. 

*  State  vs.  Pritchard,  36  N.  J.  L.,  loi  ;  Page  vs.  Hardin,  8  B.  Munroe,  648; 
Curry  vs.  Stewart,  8  Bush,  560;  Hyde  vs.  State,  52  Miss.,  665  ;  Honey  vs. 
Graham,  39  Texas,  i. 


THE  LEGAL  THEORY.  41 

President  of  the  United  States,  who  is  regarded  as 
possessing  the  power  of  removing  even  officers  ap- 
pointed by  him  in  conjunction  with  the  senate  and 
who  by  statute  have  a  fixed  term.^  It  is,  however, 
not  generally  considered  that  the  removal  of  an  ofificer 
for  neglect  of  duty  is  such  an  intrinsically  judicial  act, 
even  where  the  removal  can  be  made  for  cause  only 
and  after  a  hearing,  that  the  power  to  remove  may 
not  be  delesfated  to  the  orovernor  or  other  administra- 
tive  body  by  the  legislature.^ 

Another  power,  which  has  been  recognized  as  be- 
longing to  all  the  departments,  which  is  somewhat 
judicial  in  character  is  the  power  to  make  investiga- 
tions and  incidentally  to  summon  witnesses,  who  may 
in  most  cases  be  imprisoned  for  contempt  for  refusal 
to  testify.  There  is  some  discussion,  as  will  be  shown 
later,  as  to  the  power  of  the  legislature  to  act  in  this 
manner,  but  the  better  rule  would  seem  to  be  that 
the  legislatures  of  the  various  commonwealths  may 
appoint  commissions  to  investigate  matters  for  the 
purpose  of  future  legislation,  which  commissions  may 
summon  witnesses  and  punish  them  for  contempt  in 
case  of  their  refusing  to  answer  proper  questions.^  A 
power  to  provide  for  investigations  has  been  recog- 
nized as  existing  also  in  the  President.^ 

Fourth.  The  legislature  may  delegate  its  legisla- 
tive powers.     We  have  already  considered  the  power 

'  Parsons  vs.  U.  S.,  167  U.  S.,  324  ;  for  the  difference  between  the  national 
and  state  systems,  see  Field  vs.  People,  3  111.,  79. 

*  State  vs.  Prince,  45  Wis,,  610  ;  Keenan  vs.  Perry,  24  Texas,  253  ;  Ex  parte 
Wylie,  54  Ala.,  226  ;  State  vs.  Frazier,  48  Ga.,  137  ;  Donahue  vs.  County  of 
Will,  100  111.,  94. 

'  People  ex  rel.  Keeler  vs.  McDonald,  99  N.  Y.,  463  ;  see  also  In  re  Chap- 
man, 166  U.  S.,  661. 

*  See  4  Opinions  Attorneys-General,  248. 


42  THE  SEPARA  TION  OF  PO  WERS. 

which  the  legislature  has  to  authorize  local  corpora, 
tions  to  exercise  local  police  ordinance  powers,  and 
we  saw  that  such  action  is  perfectly  proper.  The 
question  has,  however,  arisen  as  well  as  to  the  power 
of  the  legislature  to  delegate  its  powers  of  general 
lec^islation  to  executive  or  administrative  authorities.^ 

It  is  difficult  to  state  any  general  rule  upon  this 
point.  It  may  be  said,  however,  that  numerous  deci- 
sions have  recocjnized  the  ricrht  of  the  legrislature  to 
authorize  the  executive  ofiicers  of  the  central  govern- 
ment both  of  the  United  States  and  of  the  separate 
states  to  reofulate  the  administrative  details  of  their 
departments,  and  some  have  gone  so  far  as  to  recog- 
nize that  it  is  proper  under  such  an  authorization  for 
such  ofiicers  to  issue  regulations  which  are  binding 
upon  not  merely  subordinate  officers  but  also  upon 
individuals,  who  may  be  punished  for  the  violation  of 
these  regulations,' 

It  will  be  seen  from  what  has  been  said  that  the 
principle  of  the  separation  of  powers  as  a  rule  of  law 
is  not  by  any  means  so  rigid  as  it  is  sometimes  re- 
garded. The  courts  have,  in  developing  it  in  its 
detailed  applications,  been  guided  both  by  historical 
traditions  and  considerations  of  political  expediency 
in  the  desire  to  adapt  a  doctrine  of  French  political 
philosophy  to  the  needs  of  a  system  of  government 
which  had  its  roots  in  an  English  past. 

'  It  may  be  laid  down  as  a  general  principle  that  the  legislature  may  not  dele- 
gate to  the  people  its  general  legislative  powers.  Oberholtzer,  The  Referendum 
in  America,  208,  217.      Barto  vs.  Himrod,  8  N.  Y.,  483. 

'  This  matter  will  be  taken  up  later  under  the  topics  of  "  The  Chief  Execu- 
tive "  and  "  The  Executive  Departments,"  p.  138,  which  see. 


(      ^  p-~" 


n  (I  _.. 


CHAPTER  V. 

THE    RELATION    OF   THE    EXECUTIVE   TO    THE    OTHER 

AUTHORITIES. 

The  principle  of  the  separation  of  powers  not  only 
involves  the  existence  of  three  somewhat  separate 
authorities,  but  also  insists  that  each  authority  shall 
be  independent  of  the  other  authorities,  But  just  as 
it  is  impossible  to  distinguish  clearly  three  powers 
and  authorities  of  government,  so  it  is  impossible  that 
any  governmental  authority  shall  be  absolutely  inde- 
pendent of  other  governmental  authorities.  As  ad- 
ministrative law  has  to  do  with  the  position  of  the 
executive,  it  is  necessary  that  we  ascertain  the  actual 
relations  of  the  executive  with  the  other  authorities  in 
the  government. 

/. — Relation  to  the  legislature. 

I.  The  legislature  the  regulator  of  the  administra- 
tion.— In  all  countries,  the  action  of  the  executive  is 
subject  to  the  control  of  the  legislature.  In  the  first 
place,  the  legislature  has  power  to  lay  down  rules 
in  accordance  with  which  the  executive  and  adminis- 
trative authorities  are  to  act.  The  legislature  has 
been  called  the  regulator  of  the  administration.  ^  This 
is  true  in  the  United   States  to  a  degree  unknown 

»Sarwey,  AlUgtmeines  Verwaltungrreeht,  37. 
43 


-%- 


;  ,^       44  THE  SEPARATION  OF  POWERS. 

in  any  other  country.  In  the  United  States,  the 
legislature  specifies  in  detail  the  powers  to  be  ex- 
ercised by  the  executive  authorities,  and  regulates 
the  exercise  of  these  powers  in  most  particulars.^  It 
does  so,  not  because  minute  regulation  is  of  the 
essence  of  legislative  power,  but  because  of  the  posi- 
tion in  which  the  executive  has  been  placed  as  a  re- 
sult of  English  and  American  historical  development. 
Eno-lish  and  Americans  have  not  recognized  the  ex- 
ecutive  department  —  notwithstanding  judicial  state- 
ments to  the  contrary  —  as  co-ordinate  with  the 
legislative  or  even  with  the  judiciary.  Further,  the 
original  administrative  organization  in  England  was 
not,  and  the  present  administrative  organization  in 
the  United  States,  apart  from  the  national  govern- 
ment, is  not,  hierarchical  in  character.  That  is,  while 
the  powers  of  the  various  officers  differ  in  degree  and 
in  territorial  extent,  the  less  important  administrative 
officers  are  not,  in  the  absence  of  laws  to  that  effect — 
and  these  laws  are  quite  rare, — subjected  to  the  con- 
trol and  supervision  of  the  more  important  adminis- 
trative officers.  Each  officer  is  within  the  law  to  act 
in  accordance  with  his  own  views  of  what  is  right  and 
proper.  The  allegiance  and  responsibility  of  each 
officer  are  to  the  law  and  not  to  some  administrative 
superior.  This  system  of  administration  is  spoken  of 
as  a  government  of  law  and  not  of  men.  The  supe- 
rior or  rather  the  more  important  administrative  offi- 
cers having  little  or  no  power  of  direction  or  control 
over  the  less  important  administrative  officers,  the 
legislature  must  necessarily  determine  in  detail  all  the 
powers  and  duties  of  the  administrative  authorities. 

'  Freund,  "American  Administrative  Law,"  P.  S.  Q.,  vol.  ix.,  p.  403. 


THE  POSITION  OF  THE  EXECUTIVE.        45 

The  principle  of  specialization  of  powers  without 
adminstrative  or  executive  control  imposes  on  the 
legislature  functions  which  are  really  administrative 
in  character.  The  restriction  of  specific  official  au- 
thority often  so  narrows  the  scope  of  a  statute  that  it 
becomes  really  an  administrative  act.  The  legisla- 
ture thus  becomes  in  a  certain  sense  the  central  ad- 
ministrative authority.  The  result  of  such  a  system 
has  been  to  introduce  politics  into  administration. 
This  has  been  inevitable  because  the  body,  which 
not  only  theoretically  has  general  control  over  ad- 
ministration but  also  actually  is  exercising  a  very 
minute  and  detailed  control  over  it  through  the  pas- 
sage of  special  legislation,  is  of  necessity  dominated 
by  political  parties.  The  evil  effect  which  this  spe- 
cial legislation  has  had  upon  administrative  efficiency 
has  been  so  great  that  the  attempt  has  been  made,  in 
a  large  number  of  state  constitutions,  to  prohibit  the 
passage  by  the  legislature  of  special  legislation  with 
regard  to  a  series  of  subjects  where  such  legislation  is 
seen  to  have  bad  results.' 

Where,  on  the  contrary,  we  find  a  hierarchical  ad- 
ministrative organization  with  superior  and  inferior 
officers  and  a  large  power  in  the  former  of  control 
and  direction  over  the  latter,  we  find  a  different  rela- 
tion between  the  administration  and  the  legislature. 
The  statutes  of  the  legislature  lay  down  general  rules 
of  conduct,  leaving  to  the  superior  administrative  offi- 
cers to  elaborate  those  rules  in  their  details.  In  those 
governments  where,  like  the  United  States  national 
government,  the  conception  of  the  executive  power  is 
not  a  broad  one,  these  ordinances  are  issued  by  the 

'  Infra,  p.  172. 


46  THE  SEPARATION  OF  POWERS. 

executive  as  a  result,  not  of  the  exercise  of  a  supple- 
mentary ordinance  power,  whose  possession  by  the 
executive  is  recognized  by  the  constitution,  but  rather 
as  a  result  of  the  delegation  to  the  executive  by 
the  legislature  of  a  power  of  ordinance  over  spe- 
cific subjects.  Such  a  delegation  of  power  is  not  re- 
garded as  violating  the  principle  of  the  separation  of 
powers/ 

While  in  both  the  national  and  the  state  adminis- 
trative systems  the  legislature  is,  in  constitutional 
theory,  the  regulator  of  the  administration,  still,  as  a 
result  of  historical  development,  which  has  brought  it 
about  that  the  administrative  organization  in  the  one 
is  centralized,  in  the  other  decentralized,  we  find  the 
national  executive  much  more  powerful,  much  more 
important,  and  much  more  independent  of  legislative 
reofulation  as  to  details  than  the  state  executive.  The 
rule  that  the  legislature  is  the  reg;;ulator  of  the  admin- 
istration  does  not  mean,  in  the  case  of  the  national 
government,  that  the  executive  may  act  only  in  the 
execution  of  the  law,  and  that  it  possesses  no  discre- 
tion, as  is  largely  the  case  with  the  state  executives. 
On  the  contrary,  it  has  been  held  that  there  is  a 
sphere  in  which  the  administration  may  move  without 
looking  to  the  statutes  for  authorization.  "  Perhaps 
the  best  general  statement  of  the  present  situation  in 
this  question  is  the  following  quotation  from  an  at- 
torney-general's opinion,  which  is  paraphrased  from 

'  A  marked  exception  to  the  general  principle  that  the  President  has  the 
power  to  issue  only  those  ordinances  which  the  Congress  of  the  United  States 
has  authorized  him  to  issue,  is  found  in  the  case  of  the  Army  and  Navy  Regu- 
lations. These  regulations,  it  has  been  held,  may  be  issued  by  the  President  as 
a  result  of  the  exercise  of  his  constitutional  powers  as  commander-in-chief  of 
the  army  and  navy.     Infra,  p.  85. 


THE  POSITION  OF  THE  EXECUTIVE.        47 

a  Supreme  Court  opinion  in  reference  to  the  authority 
of  the  head  of  a  department : 

The  President  '  is  limited  in  the  exercise  of  his  powers  by  the 
constitution  and  the  laws,  but  it  does  not  follow  that  he  must 
show  a  statutory  provision  for  everything  he  does.  The  govern- 
ment could  not  be  administered  upon  such  contracted  principles. 
The  great  outlines  of  the  movements  of  the  executive  may  be 
marked  out  and  limitations  imposed  upon  the  exercise  of  his 
powers.  Yet  there  are  numberless  things  which  must  be  done 
which  cannot  be  anticipated  and  defined,  and  are  essential  to  ;  . 
useful  and  healthy  action  of  government.'  "  '  T^'^^'^^^J'^X^^ 

Further,  it  is  generally  recognized  that  there  is  in  ^^^^J-^t^X^^A. 
the  President  a  latent  power  of  discretionary  action 
which  is  denominated  the  "  war  power,"  and  which  is. 
in  times  of  extraordinary  danger,  capable   of  great 
expansion,^  ^v. 

It   is   seen   thus  that  while  the   legislature  is  the 
regulator  of  the  administration,  still  in  the  national  Q-^^y 
government  of  the  United  States  there  is  a  realm  of    ,     , 
action    in    which    the    executive    authority  possesses'^'^'^'''^^ ''^^ 
large  discretion.     In  the  separate  states  of  the  United  /^-^^mj 

States  also  the  constitutions  often  confer  large  dis-       ,^ 

cretionary  powers  on  the  governors.  The  mere  fact 
that  many  of  the  governors  have  the  right  to  disap- 
prove the  resolutions  of  the  legislature  gives  them  an 
opportunity  to  modify  the  action  of  the  legislature  as 
the  regulator  of  the  administration,  and  to  prevent  its 
making  use  of  what  are  really  administrative  powers 

1  6  Opinions  Attorneys-General,  pp.  lo  and  365  ;  8  ibid.,  p.  343  ;  10  ibid.,  p. 
413;  cf.  United  States  vs.  McDaniel,  7  Peters  14;  cited  from  Fairlie,  "The 
Administrative  Powers  of  the  President,"  Michigan  Law  Review,  vol.  ii.,  p. 
203  :  see  also  Digest  of  Decisions  of  the  Judge- Advocate-General  of  the  Army, 
1901,  p.  713,  and  In  re  Neagle,  135  U.  S.,  i.,  particularly  64-68. 

'  Cf.  Dunning,  "  The  Constitution  in  Civil  War,"  P.  S.  Q.,  vol.  i.,  p.  163. 


48 


THE  SEPARATION  OF  POWERS. 


to  the  disadvantage  of  the  state.  This  it  Is  prone 
to  do,  because  it  is  not  amenable  to  direct  control, 
and  it  does  not  therefore  feel  so  direct  a  sense  of 
responsibility. 

2.  The  control  of  the  legislature : — Further,  besides 
regulating  the  action  of  the  administration,  the  legis- 
lature exercises  a  direct  control  over  the  administra- 
tion to  keep  it  within  the  law.  The  extent  of  this 
control  depends  very  largely  upon  the  degree  to 
which  the  executive  is  dependent  in  tenure  upon  the 
K-  leo^islature.  In  the  United  States,  both  in  the  na- 
tional  and  the  state  governments,  the  executive  is 
independent  in  tenure  of  the  legislature,  with  the 
single  exception  that  it  may  be  removed  as  a  result 
of  impeachment  for  absolute  corrupt  and  illegal 
action.  The  result  is  that  the  control  of  the  leeis- 
lature  over  the  executive  in  the  United  States  is 
comparatively  slight.  Owing  to  the  slight  control 
which  the  legislature  has  over  the  executive,  the 
necessary  harmony  between  the  making  and  the  exe- 
cution of  the  law  has  to  be  secured  outside  of  the 
':  governmental  system.  The  attempt  is  made  to  secure 
it  through  the  political  party  which,  as  a  result  of 
political  necessity,  has  obtained  during  our  century 
or  more  of  political  development  great  strength.^ 


,i« 


//. — Relation  to  the  courts. 

The  executive  authorities  are  subject  also  to  the 
control  of  the  courts.  The  extent  and  character  of 
the  control  which  the  courts  may  exercise  over  the 
executive  authorities   depend  upon   the  character  of 

'  See  Ford,   The  Rise  and  Growth  of  American  Politics,   p.   215  ;   see  also 
Macy,  Party  Organization  and  Machinery,  passim. 


X 


THE  POSITION  OF  THE  EXECUTIVE.         An  fl 

the  act  which  it  is  sought  to  control.  From  the  point 
of  view  of  this  control,  the  acts  of  the  executive 
authorities  may  be  classed  as  political  and  non-polit- 
ical acts. 

1.  Political  acts. — By  political  acts  are  meant  those 
acts,  whether  of  general  or  of  special  application,  done 
by  the  administration  in  the  discharge  of  its  political 
functions,  such  as  the  carrying  on  of  the  diplomatic    •'7  O""^ 
relations  of  the  country,  the  making  of  treaties,  the     /\,j&.^ 
command  and  disposition  of  the  military  forces,  and    \  ^ 

the  government  and  conduct  of  the  relations  of  the 
executive  with  the  legislature.  Over  such  acts  the 
courts  have  no  powers  of  control.  The  principle  of 
popular  responsibility  which  has  been  adopted,  it  is 
believed,  will  be  sufficient  to  ensure  the  impartial  and 
wise  performance  of  these  political  acts.^ 

2.  Non-political  acts. — The  non-political  acts  of  the 
executive  are  either  general  in  their  application  when 

they  are  spoken  of  as  legislative  acts,  or  are  special     -     •^^■ 
in  their  application  when  they  are  known  by  no  one  \ 

generic  name.     They  may,  however,  be  classified  as  ^ 

contractual  acts  and  administrative  acts  of  special 
application. 

I  St.  Legislative  acts. — The  legislative  acts  of  the 
executive  are  to  be  found  in  the  ordinances  which  it 
has  the  power  to  issue.  The  courts  have  the  same 
power  over  them  as  they  have  over  the  statutes  of 
the  legislature — that  is,  they  may  interpret  them,  and  4'  ^-'''*^aM 
in  most  cases  declare  them  void  or  refuse  to  enforce 
them  in  case  they  are  contrary  to  the  law.  Further,  /  v  ^ 
m  the  case  of  ordinances  issued  by  local  authorities  as' '"'^''*''^^"^ 

'  Luther  vs.  Borden,  7  Howard,   U.  S.,  i  ;  Miss.  vs.  Johnson,  4  Wallace 

475- 

4 


>'    I 


(T^ 


50  THE  SEPARATION  OF  POWERS. 

a  result  of  the  exercise  by  such  authorities  of  a  general 
ordinance  power,  the  control  of  the  courts  is  some- 
what greater.  In  such  cases  the  courts  may  declare 
an  ordinance  void  because  they  believe  It  to  be 
unreasonable.^ 

2d.  Contractual  acts. — The  tendency  at  the  present 
time  is  to  recognize  that  the  courts  have  much  the 
same  power  over  the  contractual  acts  of  the  execu- 
tive authorities  as  they  have  over  the  contractual 
acts  of  individuals  and  private  corporations.  So  far 
as  these  acts  are  the  acts  of  the  local  corporations 
which  have  been  established  by  the  state  governments, 
Vthe  control  of  the  courts  Is  complete.  In  the  case, 
however,  of  the  central  officers  of  the  state  govern- 
ments and  the  officers  of  the  national  government, 
^  ^^  the  control  of  the  courts  Is  limited  because  of  the 
xj/^  adoption  of  the  rule  that  no  one  can  sue  the  govern- 

,,j^^  ment  except  with  Its  consent.  In  some  cases  the  na- 
^'^  tlonal  government  and   the  states  have  given   their 

consent  to  the  brlnorlno-  of  suits  In  contract  ag-alnst 
them  In  the  ordinary  courts,  while  in  the  case  of  the 
national  government  and  one  or  two  states,  a  special 
court,  called  the  Court  of  Claims,  has  been  formed  for 
the  purpose  of  deciding  certain  or  all  such  suits.^ 

3d.  Administrative  acts  of  special  applicatio7i. — 
We  have  no  general  term  for  these  acts.  They 
are  called  sometimes  orders,  sometimes  decisions, 
precepts,  or  warrants.  By  the  performance  of  these 
acts  the  executive  authorities  perform  most  of  their 
duties,  and  in  the  performance  of  these  acts  they  are 
coming  continually  Into  conflict  with  the  individuals 
over  whom  they  have  jurisdiction.     Some  sort  of  a 

'  Infra,  p.  327.  '  Ibid.,  p.  386, 


THE  POSITION  OF  THE  EXECUTIVE.        51 

control  over  these  acts  is  therefore  necessary.  In 
the  United  States  the  rule  is  that  when  an  individual 
act  of  the  administration  is  not  of  a  political  or  a  con- 
tractual character,  the  courts  have  a  very  large  control 
over  it.  In  many  cases  they  may  annul  it,  amend  it, 
interpret  it,  and  prevent  the  administration  from  pro- 
ceedinor  to  execute  it.^ 

///. —  The  position  of  the  executive. 

It  is  now  possible,  after  this  consideration  of  the 
relations  of  the  executive  authority  with  the  legisla- 
ture and  the  courts,  to  ascertain  what  its  position  is  in 
the  governmental  system.  It  may  be  said  that  the 
executive  is  within  the  law,  which  may  and  often  does 
descend  into  great  detail,  almost  altogether  indepen- 
dent of  the  legislature,  and  that  its  acts,  not  of  a 
political  or  contractual  character,  are  subject  in  many 
cases  to  the  control  of  the  courts  which  are  to  keep  it 
within  the  limits  of  the  law. 

The  independence  of  the  executive  over  against 
the  legislature  has  an  important  effect,  both  upon  the 
position  of  the  executive  in  the  general  political  sys- 
tem, and  on  that  of  the  political  party  through  which 
the  government  is  carried  on.  The  independence  of 
the  executive  over  aorainst  the  leo-islature  makes  it 
possible  for  the  executive  to  exercise  a  strong  per- 
sonal influence,  both  on  the  making  of  law  through 
the  exercise  of  the  veto  power — that  is,  upon  the 
expression  of  the  state  will — and  upon  the  execution 
of  law  through  his  distinctly  executive  powers.  The 
legislature,  as  legislature,  can  not  deprive  him  of  his 

*  Infra,  p.  92. 


5  2  THE  SEP  A  RA  TJON  OF  PO  WEES. 

office,  and  can  exercise  little  influence  over  his  con- 
duct in  the  enforcement  of  the  law  or  in  the  use  of  his 
distinctly  political  powers. 

This  independent  position,  however,  affords  oppor- 
tunity for  conflict  between  the  executive  and  the 
legislature.  Such  opportunity  for  conflict  is  increased 
by  the  fact  that  the  legislature  and  the  executive  are 
not  commonly  elected  for  the  same  term.  It  may 
thus  happen  that  an  executive  who  is  in  accord  with 
the  legislature  at  the  time  of  his  accession  to  office, 
will  be  out  of  harmony  with  it  at  about  the  middle  of 
his  term,  owing  to  the  result  of  the  legislative  elec- 
tions which  may  take  place  at  that  time.  Further, 
on  account  of  the  difference  in  the  methods  of  elec- 
tion, an  executive  and  a  legislature  not  in  harmony 
may  be  elected  at  the  same  election.  No  means  is 
provided  in  the  governmental  system  for  settling 
any  such  conflict  that  may  arise.  The  result  is  that 
the  political  party  which  carries  on  the  government 
strives  to  secure  the  harmony  necessary  between  the 
executive  and  the  legislature  by  electing  a  legislature 
and  an  executive  of  the  same  political  faith.  To  do 
this  the  party  must  have  not  only  a  strong  but  a 
permanent  organization.  It  must  have  a  strong  or- 
ganization, since  it  must  see  to  it  not  merely  that 
members  of  the  legislature  of  its  political  faith  are 
elected,  but  also  that  an  executive  in  accord  with  the 
legislature  is  elected.  The  political  party  must  have 
a  permanent  organization,  because  it  must  struggle 
not  merely  at  the  time  when  a  legislature  is  elected, 
but  also  at  the  time  that  the  executive  is  elected.  The 
relations  of  the  national  and  state  politics  are  so 
close  that  the  party  must  take  action  practically  every 


THE  POSITION  OF  THE  EXECUTIVE.        53 

year,  and  must  therefore  have  a  permanent  organiza- 
tion if  it  hopes  to  win. 

This  great  strength  and  this  permanence  of  the 
pohtical  party  organization  cannot  fail  to  have  great 
influence  on  the  actual  position  of  the  executive  in 
the  political  system.  From  the  point  of  view  of  legal 
theory,  independent  of  the  legislature,  the  executive 
is,  from  the  point  of  view  of  actual  political  practice, 
under  the  control  of  the  party  which  has  put  him  in 
office  and  one  of  whose  leaders  he  is.  The  inde- 
pendence of  the  executive,  which  appears  so  great 
upon  a  consideration  of  the  constitution,  disappears 
when  we  consider  his  position  from  the  point  of  actual 
political  practice.  The  needs  of  practical  political 
life  take  from  the  executive  his  independence  and 
render  him  responsible  to  an  extra -governmental 
organization. 

This  political  dependence  of  the  executive  has  its 
advantages  and  its  disadvantages.  Provided  the 
political  parties  are  reasonably  responsive  to  the 
public  will,  responsible  executive  government  is  as- 
sured and  conflicts  of  long  standing  between  the 
executive  and  the  legislature  are  prevented.  The 
executive  also  is  permanent  enough  to  ensure  a 
reasonably  permanent  policy.  It  cannot  be  denied, 
however,  that  the  executive  is  liable  to  great  tempta- 
tion to  use  his  powers  in  the  interest  of  the  party  he 
represents  in  the  hope  of  thereby  aiding  and  securing 
a  legislature  which  will  support  him  and  it.  If,  either 
by  provision  of  law  or  as  a  result  of  public  opinion, 
the  administrative  side  of  the  executive  power  is 
not  recognized  as  a  matter  which  should  not  be  sub- 
jected to  the  control  of  politics,  the  efficiency  of  the 


54  THE  SEPARATION  OF  POWERS. 

administration  is  liable  to  suffer  and  the  attempt  is 
likely  to  be  made  by  the  executive  to  influence  im- 
properly the  expression  of  the  state  will,  so  that  the 
formal  expression  of  that  will  may  not  be  in  accord 
with  the  real  state  will. 


( 


11 


CHAPTER  VI. 

TERRITORIAL    DISTRIBUTION    OF    ADMINISTRATIVE 

FUNCTIONS. 

/.  —  Participation  of  local  coinmunities  in  adminis- 

tration. 

All  states  of  any  size  must  be  divided  into  districts 
in  order  that  the  work  of  many  branches  of  govern- 
ment may  be  satisfactorily  carried  on.  Thus,  for  the 
purpose  of  the  administration  of  justice  there  must 
be  districts  in  each  of  which  are  situated  judicial  offi- 
cers having  jurisdiction  over  the  district.  Further, 
almost  all  states  of  any  size  are  based,  from  the  his- 
torical point  of  view  at  least,  more  or  less  on  the 
federal  idea.  This  is  as  true  of  a  number  of  the 
states  of  the  United  States  as  it  is  of  other  countries. 
Thus,  the  state  of  Connecticut  really  resulted  from  a 
combination  of  the  various  settlements  which  were 
made  within  the  limits  of  the  present  state.  In  many 
states,  however,  the  growth  of  the  lowest  local  units, 
like  the  towns  into  the  counties,  and  that  of  the  coun- 
ties into  the  state,  is  not  clear.  In  some  states, 
indeed,  the  state  antedates  the  local  districts.  At 
the  same  time,  in  most  instances  the  state  makes  the 
most  important  districts  into  which  it  is  divided  for 
purposes  of  state  government  something  more  than 

5S 


56  THE  SEPARATION  OF  POWERS. 

mere  administrative  districts.  It  endeavors  to  en- 
courage within  them  the  development  of  a  local  life 
of  their  own,  separate  and  apart  from  the  life  of  the 
state.  It  vests  them  with  powers  to  satisfy  local 
needs  and  not  infrequently  delegates  to  them,  or  to 
officers  chosen  by  the  inhabitants  of  each  of  the  dis- 
tricts, the  power  to  act  in  certain  branches  of  adminis- 
tration which  are  of  peculiar  interest  to  the  state  as 
a  whole,  and  interest  only  indirectly  the  people  of 
such  district.  In  so  far  as  the  state  grants  powers  to 
its  local  divisions,  or  vests  the  officers  chosen  by  the 
people  of  such  divisions  with  governmental  authority, 
the  administrative  system  is  called  a  decentralized 
one, — one  of  local  self-government.  In  so  far  as  the 
state  does  not  adopt  such  a  policy,  that  is,  in  so  far  as 
the  state  reserves  to  its  own  officers  the  power  to  act 
in  the  execution  of  the  law  or  subjects  the  officers  of 
the  local  communities — if  such  are  recognized — to 
the  supervision  and  control  of  state  officers  in  the 
execution  of  the  law,  the  administrative  system  is 
called  a  centralized  one. 

The  establishment  of  the  system  actually  adopted 
may  be  secured  in  one  of  two  ways  :  where  there  is  a 
written  constitution,  this  may  set  apart  to  the  state 
government  on  the  one  hand  and  to  each  of  the  local 
governments  on  the  other  hand  its  sphere  of  action  ; 
where  there  is  no  written  constitution,  this  apportion- 
ment of  the  work  of  government  will  be  done  by  the 
state  legislature. 

Whichever  method  may  be  adopted,  it  may  be  said 
that  the  prevailing  public  opinion  at  a  given  time  will 
in  the  end  control  the  situation  which  actually  exists, 
constitutional  provisions  to  the  contrary  notwithstand- 


CENTRAL  AND  LOCAL  GOVERNMENT         57 

ing.  For  if  the  attempt  is  made  in  the  constitution 
to  insure  to  the  state  more  than  is  its  due, — that  is, 
more  than  is  recognized  as  proper  by  the  prevail- 
ing pubHc  opinion, — extra-legal  forces  come  into  play 
which  may  really  nullify  the  provisions  of  the  consti- 
tution as  actual  rules  of  conduct.  For  example,  if 
the  state  assumes  to  itself  to  provide  the  same  regu- 
lations for  the  moral  conduct  of  all  of  its  inhabitants, 
regardless  of  the  difference  in  the  moral  standards 
which  may  exist  in  the  different  parts  of  the  state,  it 
may  find  itself  unable,  notwithstanding  the  most  cen- 
tralized system  of  administration,  to  enforce  its  will 
in  certain  districts  of  the  state.  This  has  been  the 
almost  universal  result  in  cities,  where  a  state  has 
attempted  to  adopt  and  enforce,  even  through  state 
agency,  a  law  absolutely  prohibiting  the  sale  of  liquor. 
On  the  other  hand,  the  attempt  to  vest  the  localities 
with  powers  which  really  interest  the  whole  state 
may,  indeed  probably  will,  result  in  the  state  political 
parties  taking  control  of  the  local  governments  and 
managing  them  in  the  interest  of  the  state.  Thus 
cities  in  the  United  States  are  made  the  agfents  of 
the  state  governments  in  a  large  variety  of  matters. 
The  state  political  parties  strive,  under  such  con- 
ditions, to  get  control  of  the  city  government  if  the 
work  performed  by  the  cities  is  regarded  by  them  as 
interesting^  the  fortunes  of  the  state  as  a  whole. 

If  we  look  at  this  matter  from  the  point  of  view  of 
theoretical  speculation,  we  shall  find  it  impossible 
to  lay  down  many  general  rules  as  to  what  subjects 
of  government  should  be  decentralized  in  the  sense 
in  which  this  word  has  already  been  used.  At  the 
same  time  there  are  certain  kinds  of  o-overnmental 


58  THE  SEPARATION  OF  POWERS. 

activity  in  which  the  local  communities  can,  in  the 
nature  of  things,  not  participate  at  all.  This  is  true 
of  that  branch  of  administration  which  has  been 
spoken  of  as  the  administration  of  foreign  relations. 
Further,  in  certain  other  administrative  branches  the 
demand  for  uniformity  is  so  imperious,  the  interests 
of  the  state  as  a  whole  are  so  vitally  concerned  that, 
if  the  localities  are  permitted  to  act  at  all,  they  must 
act  subject  to  the  control  of  the  state  government. 
This  is  true  of  the  administration  of  military,  judicial, 
and  financial  affairs.  In  these  branches  of  adminis- 
tration the  localities  cannot  be  permitted  to  have  any 
powers  of  independent  action  but  must — where  they 
are  permitted  to  act  at  all — be  regarded  as  agents  of 
the  central  government  and  subject  to  its  control. 

The  result  of  this  process  of  exclusion  is  to  cause 
us  to  conclude  that  the  sphere  of  local  administrative 
autonomy,  if  recognized  at  all,  is  to  be  found  in  that 
branch  of  administration  which  has  been  spoken  of  as 
the  administration  of  internal  affairs.  Even  in  this 
branch  of  administration,  as  in  the  other  branches 
mentioned,  in  many  cases  the  localities  must,  for 
reasons  already  stated,  be  subjected  to  the  control  of 
the  central  government.  Thus,  the  administration 
of  the  public  health  and  public  charity,  and  the  pres- 
ervation of  the  peace,  cannot  be  left  to  localities 
acting  free  of  all  central  control. 

What  shall  be  the  spheres  of  central  and  local  ad- 
ministrative action  in  a  given  state,  and  what  shall  be 
the  kind  and  extent  of  central  control  exercised  over 
the  localities  where  they  are  regarded  as  the  agents 
of  the  central  government,  are  matters  to  be  deter- 
mined by  the  positive  law  of  the  state.     The  determi- 


CENTRAL  AND  LOCAL  GOVERNMENT         59 

nations  reached  by  the  different  states  differ  consider- 
ably one  from  the  other,  and  are  based  upon  the  differ- 
ent social  and  political  conditions  obtaining  therein. 

//. — The  Anglo-American  method  for  providing  for 

the  participation  of  the  local  communities  in  the 

work  of  administration. 

Attention  has  already  been  called  to  the  fact  that 
one  of  the  fundamental  principles  of  the  Anglo- 
American  administrative  law  is  the  statutory  enu- 
meration in  detail  of  the  powers  of  administrative 
authorities.  Inasmuch  as  the  local  communities  are, 
from  the  point  of  view  of  the  law,  administrative 
authorities,  it  naturally  follows  that  the  powers  which 
they  may  exercise — in  other  words,  the  degree  of 
their  participation  in  the  work  of  government,  and 
the  ways  in  which  they  may  so  participate — are  fixed 
in  detail  in  the  statutes  of  the  legislature.  The  locali- 
ties are,  no  more  than  any  administrative  authority, 
recognized  as  possessing  any  sphere  of  independent 
action.  They  may,  it  is  true,  be  regarded  as  local 
corporations,  with  the  power  of  owning  property  and 
of  suing  and  being  sued,  but  they  have  no  sphere  of 
action  of  their  own,  and  are  regarded  simply  as  dis- 
tricts of  the  state.  The  officers  who  act  for  them  are, 
in  many  cases,  merely  agents  of  the  central  govern- 
ment acting  in  local  divisions.  The  position  of  the 
most  important  local  corporations  in  the  United 
States  is  well  brought  out  in  the  cases  of  Hamilton 
County  vs.  Mighels,^  and  Lorillard  vs.  The  Town  of 
Monroe.^     In  the  first  case  the  court  says  that  the 

^  7  Ohio  State,  109.  *  11  New  York,  392. 


6o  THE  SEPARATION  OF  POWERS. 

county  is  merely  a  division  of  the  state  for  the  pur- 
pose of  general  state  administration ;  in  the  latter 
case  the  court  holds  that  "  town  officers,"  such  as 
assessors  and  collectors,  are  state  officers  and  not 
officers  of  the  town  corporation  for  whose  action  the 
town  is  pecuniarily  responsible. 

The  cities  are,  from  this  point  of  view,  in  about  the 
same  position  as  these  quasi-corporations,  as  towns 
and  counties  are  called.  Their  powers  are  generally 
enumerated,  and  it  cannot  be  said  that  they  have  by 
the  ordinary  constitutions  or  statutes  many  powers 
of  independent  local  action.^ 

Under  such  a  system  of  legislative  enumeration  of 
local  powers  the  needs  of  uniform  administration  are, 
it  is  thought,  satisfied  by  the  exercise  by  the  legisla- 
ture of  its  power  to  change  the  duties  and  to  increase 
or  decrease  the  powers  of  the  localities.  The  result- 
ing- continuincT  interference  of  the  legislature  with 
matters  which  might  better  be  attended  to  by  the 
localities,  has  had  such  evil  results  in  the  United 
States  that  the  attempt  has  in  some  cases  been  made 
to  limit,  in  the  state  constitution,  the  powers  of  spe- 
cial and  local  legislation  possessed  by  the  legislature. 
This  method  of  regarding  the  localities  as  in  all  cases 
the  agents  of  the  central  state  government,  and  of 
enumerating  in  detail  their  powers  and  duties,  makes 
it  seem  unnecessary  to  form  any  further  central  state 

'  See  United  States  vs.  B.  &  O.  Railroad  Co.,  17  Wallace,  322.  Here  the 
Supreme  Court  of  the  United  States  says  :  "  A  municipal  corporation 
is  a  representative,  not  only  of  the  state,  but  is  a  portion  of  its  governmental 
power.  It  is  one  of  its  creatures  made  for  a  specific  purpose,  to  exercise  within 
a  limited  sphere  the  powers  of  the  state.  The  state  .  .  .  may  govern  the 
local  territory  as  it  governs  the  state  at  large.  It  may  enlarge  or  contract  its 
powers  or  destroy  its  existence." 


CENTRAL  AND  LOCAL  GOVERNMENT         6i 

control   over  the   localities.      The   control   over  the 
localities  and  local  officers  is  thus  a  legislative  control. 

While  localities  and  local  officers  are  thus  subjected 
to  a  very  extensive  legislative  control,  they  possess, 
however,  large  freedom  of  action  from  the  adminis- 
trative point  of  view ;  that  is,  if  the  law  permits  them 
to  act  they  are  seldom  subject  to  the  control,  direc- 
tion, or  supervision  of  any  state  administrative  officer. 
While  this  freedom  from  central  administrative  con- 
trol gives  them,  as  a  matter  of  fact,  large  power  in 
the  execution  of  the  law  to  modify  it  so  as  to  suit 
local  conditions,  and  even  in  some  instances  to  nullify 
it  where  the  local  will  differs  from  the  state  will,  it 
does  not  give  them  any  powers  of  a  positive  charac- 
ter. This  absence  of  positive  power  is  due  to  the 
fact  that,  while  in  many  instances  it  is  beyond  the 
power  of  the  courts  to  force  a  local  officer  to  take 
action  in  the  enforcement  of  a  law  which  is  unpopular 
in  the  particular  locality,  the  courts  can  in  a  proper 
case  declare  illegal  an  act  of  a  locality  or  of  a  local 
officer  in  excess  of  power. 

The  Anglo-American  method  of  permitting  the 
localities  to  participate  in  the  work  of  government 
may  be  characterized,  therefore,  as  one  of  legislative 
centralization  and  administrative  decentralization.  It 
is,  however,  to  be  noticed  that  the  essential  defects 
of  such  a  system,  which  are,  as  has  been  intimated, 
the  ineffectiveness  of  the  state  control  and  the  nar- 
rowness of  the  sphere  of  local  action,  have  resulted 
in  a  number  of  the  states  in  quite  a  modification  of 
the  original  system.  Thus  we  find  that  constitutional 
provisions  have  been  adopted  which  have  guaranteed 
to  certain  of  the   localities  quite   a  degree  of  local 


62  THE  SEPARATION  OF  POWERS. 

power.  We  also  find  that  the  tendency  in  almost  all 
of  the  states  which  have  reached  a  high  degree  of 
social  development  is  to  subject  the  actions  of  local 
officers  more  or  less  to  central  administrative  control. 

///. — Sphere  of  central  administration. 

As  has  been  indicated,  there  are  certain  branches 
of  administration  where  in  the  nature  of  things  the 
local  communities  cannot  act  at  all  or  cannot  act  to 
the  same  advantage  as  the  central  administration. 
For  these  branches  the  central  government  forms  a 
series  of  offices  unconnected  in  any  way  with  the 
local  corporations.  The  tendency  in  the  United 
States  has  of  late  years  been  to  increase  the  number 
of  such  administrative  services  attended  to  by  the 
central  government.  Thus  the  customs  and  the  in- 
direct taxes,  from  the  proceeds  of  which  the  expenses 
of  the  national  government  are  largely  provided,  were 
at  one  time  in  the  history  of  the  country  (that  is,  dur- 
ing the  Colonial  and  Confederate  period)  often  at- 
tended to  by  local  officers,^  but  are  now  entrusted  to 
officers  of  the  national  government.  In  the  states, 
such  matters  as  factory  inspection,  railroad  super- 
vision, and  certain  branches  of  public  charity  are 
attended  to  by  state  officers  who  are  in  no  way  con- 
nected with  the  local  corporations.  In  other  cases, 
while  the  local  communities  are  permitted  to  act, 
they  are  subjected  to  a  central  administrative  control."^ 

'  See  "  History  of  Tariff  Administration  in  the  United  States,"  by  John  D. 
Goss,  in  Columbia  College  Studies  in  History,  Economics,  and  Public  Law, 
vol.  i.,  part  2,  pp.  I2  and  15. 

^  See  Webster.  "  Recent  Centralizing  Tendencies  in  State  Educational  Ad- 
ministration," Columbia  University  Studies  of  History,  Economics,  and  Public 


CENTRAL  AND  LOCAL  GOVERNMENT         ^i 

As  a  result  of  these  arrangements  we  conclude  that 
not  only  is  the  function  of  administration  largely 
separated  from  the  functions  of  legislation  and  the 
rendering  of  judicial  decision,  and  entrusted  in  most 
cases  to  special  authorities,  but  also  that  the  special 
authorities  entrusted  with  the  function  of  administra- 
tion are  of  two  kinds,  namely,  central  and  local.  Of 
these  two  kinds  of  authorities  the  central  authorities, 
i,  e.,  the  national  and  state  authorities,  have  to  at- 
tend to  those  matters  which,  by  the  law  of  the  land, 
have  been  recognized  as  general  in  character  and, 
where  the  central  control  over  the  localities  and  local 
officers  is  an  administrative  one,  have  to  exercise  that 
control.  The  local  authorities,  on  the  other  hand, 
act  as  aofents  of  the  central  o-overnment  and  are  at 
the  same  time  local  corporations.  These  local  au- 
thorities are  in  all  cases  subject  to  a  central  control 
which  is  either  a  legislative  or  an  administrative 
control. 

Law,  vol.  viii.,  part  2;  Wliitten,  "Public  Administration  in  Massachusetts," 
ibid.,  vol.  viii.,  part  4;  Fairlie,  "  The  Centralization  of  Administration  in  New 
York  State,"  ibid.,  vol.  ix.,  part  3;  Sites,  "Centralized  Administration  of 
Liquor  Laws  in  American  Commonwealths,"  ibid.,  vol.  x.,  part  3;  Orth,  "  The 
Centralization  of  Administration  in  Ohio,"  ibid.,  vol.  xvi.,  part  3;  Rawles, 
"Centralizing  Tendencies  in  the  Administration  of  Indiana,"  ibid.,  vol.  xvii., 
part  i;  Bowman,  "  The  Administration  of  Iowa,"  ibid.,  vol.  xviii.,  part  I. 


BOOK  II. 
CENTRAL  ADMINISTRATION. 


CHAPTER  I. 

THE     EXECUTIVE    POWER     AND     THE     CHIEF    EXECUTIVE 

AUTHORITY. 

/.  —  The    executive   power    and    the    executive    au- 
thority in  general. 

Great  difficulty  has  been  found  in  the  determina- 
tion of  the  extent  and  character  of  the  power  which 
shall  be  entrusted  to  the  chief  executive  authority. 
Both  practical  men  and  students  have  always  had 
great  difficulty  in  obtaining  a  clear  conception  and 
an  adequate  expression  in  their  governmental  organi- 
zation of  their  conception  of  the  power  to  be  given 
to  the  chief  executive  authority.  The  cause  of  this 
difficulty  is  twofold  :  The  first  cause  of  difficulty  has 
come  from  the  difficulty  of  determining  the  relations 
of  the  executive  to  the  legislature.  It  has  been 
pointed  out  that  the  theory  of  the  separation  of 
powers,  which  has  had  so  much  influence  on  all  exist- 
ing governments,  demands  that  the  executive  shall  be 

64 


THE  EXECUTIVE  POWER.  65 

largely  independent  of  the  legislature.  Actual  politi- 
cal necessity  demands  that  there  shall  be  harmony 
between  the  making  and  the  enforcement  of  law. 
This  harmony  can  be  obtained  only  at  the  expense 
either  of  legislative  independence  or  executive  inde- 
pendence. Either  politics,  in  the  sense  in  which  that 
word  has  been  used  in  these  pages,  must  be  subjected 
to  the  control  of  administrative  authorities,  or  admin- 
istration must  be  subjected  to  the  control  of  political 
authorities.  If  this  is  not  the  case  governmental 
paralysis  is  likely  to  ensue.  The  harmony  between 
politics  and  administration  may  be  brought  about 
in  the  governmental  system,  or  outside  of  it,  through 
the  more  or  less  voluntary  political  associations  of 
the  people,  or  by  the  moral  and  social  influence 
of  the  executive.  Whatever  may  be  the  solution  of 
the  problem,  it  is  clear  that  it  is  difficult,  if  not  impos- 
sible, to  define  the  executive  power  from  the  point  of 
view  of  theoretical  speculation. 

Nor  is  the  problem  much  easier  from  the  purely 
legal  point  of  view.  The  executive  power  may  be 
said  to  be  legally  the  power  which  in  a  given  state 
the  executive  possesses  by  the  provisions  of  the  posi- 
tive law.  But  it  is  to  be  remembered  that  where, 
from  the  point  of  view  of  actual  facts,  the  executive  is 
under  the  control  of  extra-legal  political  bodies,  al- 
though legally  independent  of  the  legislature,  the 
most  important  political  body  in  the  government,  the 
powers  conceded  to  the  executive  in  the  formal  con- 
stitution may  be  much  less  independently  exercised 
than  the  constitution  apparently  provides.  Thus,  for 
example,  in  the  United  States  the  executive  is  by  the 
constitution  vested  with  powers  which  he  is  authorized 


66  CENTRAL  ADMINISTRATION. 

by  that  instrument  to  exercise  independently  of 
any  other  governmental  authority.  At  the  same 
time,  owing  his  election  as  he  does  to  a  political 
party,  it  is  almost  always  the  case  that  these  powers 
are  exercised  under  the  influence,  if  not  the  actual 
control,  of  the  party  to  which  he  owes  his  election. 

The  second  cause  of  the  difficulty  of  determining 
what  shall  be  the  power  entrusted  to  the  chief  execu- 
tive authority  is  to  be  found  in  the  failure  which  is  so 
often  made  to  recognize  that  what  is  called  the  execu- 
tive  power  really  consists  of  several  functions  which 
are  capable  of  greater  or  less  differentiation.  Even 
if  we  assign  what  has  been  spoken  of  as  the  judicial 
power  to  a  non-executive  authority,  it  is  still  possible 
to  differentiate  two  somewhat  different  executive 
functions.  These  are  the  political  function  and  the 
administrative  function.  One  of  the  most  noted 
French  writers  on  administration,  M.  Aucoc,  has  as 
clearly  as  any  one  brought  out  the  distinction  between 
these  two  functions.      He  says  '} 

When  we  distinguish  government  from  administration,  we 
mean  to  put  in  a  special  category  the  direction  of  all  affairs 
which  are  regarded  as  political — that  is  to  say,  the  relations  of  the 
chief  executive  authority  with  the  great  powers  of  the  govern- 
ment: the  summoning  of  electors,  for  the  election  of  senators 
and  representatives,  the  closing  of  the  session,  the  convocation  of 
the  chamber  of  deputies  and  of  the  senate,  the  closing  of  the 
senate,  the  dissolution  of  the  chamber  of  deputies,  the  carrying 
on  of  diplomatic  relations  with  foreign  powers,  the  disposition  of 
the  military  forces,  the  exercise  of  the  right  of  pardon,  the  grant- 
ing of  titles  of  nobility. 

All  of  these  matters  are  political  in  character  in 

'  Conferences  sur  l' Administration,  etc.,  {.,  78. 


THE  EXECUTIVE  PO  WER.  67 

that  they  reflect  the  general  policy  of  the  state.  All 
the  actions  of  the  executive  authority  in  regard  to 
them  should,  if  there  is  to  be  an  effective  popular 
government,  be  performed  as  a  result  of  harmonious 
relations  existinor  between  the  executive  and  the  leg^is- 
lature  as  the  body  entrusted  with  the  determination 
of  state  policy.  It  is  eminently  proper,  indeed  it  is 
necessary,  that  the  political  party  in  a  popular  gov- 
ernment should  concern  itself  with  these  political 
actions  of  the  executive,  with  this  political  or  gov- 
ernmental executive  function.  We  may  go  a  step  fur- 
ther and  embrace  within  this  political  function  the 
general  supervision  of  the  execution  of  the  law.  If 
the  administrative  system  is  centralized,  this  super- 
vision, so  far  as  subordinate  officers  are  concerned,  is 
thereby  made  a  part  of  the  duties  of  the  executive. 
If  the  administrative  system  is  not  centralized,  the 
political  party  will  inevitably  concern  itself  with  such 
supervision.  In  either  case  the  supervision  of  the 
execution  of  the  law  is  political. 

Opposed  to  the  political  executive  function  we  find 
the  administrative  function.  To  quote  M.  Aucoc 
again  :  ^ 

The  administrative  authority  has  a  mission  altogether  differ- 
ent. It  is  charged  with  providing  for  the  collective  needs  of 
the  citizens,  which  the  initiative  of  individuals  or  associations  of 
individuals  could  not  adequately  satisfy.  It  must  gather  to- 
gether the  resources  of  society,  both  in  men  and  money,  in  order 
that  society  may  continue  to  exist  and  make  progress.  It  must 
play  the  part  of  the  man  of  business  of  society,  in  its  manage- 
ment of  the  various  public  services,  as,  for  example,  in  the 
matter  of  public  works.  It  must  take  measures  of  supervision, 
and   must,    through    the    exercise    of    foresight,    preserve    the 

'  Conferences  sur  I' Administration,  etc.,  i.,  78. 


68      •  CENTRAL  ADMINISTRATION. 

property  designed  for  the  use  of  the  public;  must  maintain  order 
and  further  the  general  prosperity. 

We  may  add  that  this  administrative  work  is  al- 
most entirely  of  a  scientific,  technical,  commercial,  or 
quasi-judicial  character.  Thus  the  construction  and 
operation  of  public  works  require  high  technical  and 
scientific  skill,  whether  those  works  are  constructed 
and  maintained  by  governmental  authorities  or  by 
private  corporations  or  individuals.  Thus,  again,  the 
maintenance  and  operation  of  such  an  undertaking  as 
the  post-ofiice  require  skill  of  the  same  sort  as  is  de- 
manded for  the  successful  conduct  of  a  commercial 
enterprise.  Finally,  the  determination  of  the  amount 
of  the  contribution  which  each  individual  must  pay  to 
the  state  as  a  tax  requires  the  exercise  of  powers 
similar  in  kind  to  those  which  are  being  continually 
exercised  by  judicial  bodies.  In  all  these  cases  it 
will  be  noticed  that  there  is  a  great  difference  be- 
tween the  work  which  is  to  be  done  by  the  executive 
and  that  work  which  has  been  referred  to  as  political. 
In  the  cases  which  have  just  been  mentioned,  the  dis- 
charge of  its  functions  by  the  executive  authority 
should  be  uninfluenced  by  political  considerations, 
else  the  work  will  be  done  inefficiently  or  partially, 
and  it  may  be  corruptly.  The  more  politics  gets  into 
the  non-political  side  of  administration,  the  less  ef- 
fective and  less  impartial  will  the  work  of  the  execu- 
tive authority  be.» 

Some  constitution  makers  and  political  scientists 
have  regarded  the  executive  power  as  composed  of 
only  the  first  of  these  two  functions  which  it  has 
been  attempted  to  differentiate  ;  others,  while  recog- 
nizing that  the  executive  power  is  composed  of  both, 


wk 


THE  EXECUTIVE  POWER.  69 

have  laid  such  emphasis  on  one  side  of  the  executive 
power  as  almost  to  ignore  the  necessity  of  the  posses- 
sion by  the  chief  executive  authority  of  any  other 
power ;  while,  finally,  others  have  seen  that  an  effi- 
cient executive  must  be  an  administrator  as  well  as  a 
politician.  The  different  ideas  that  men  have  had  of 
that  part  of  the  executive  power  which  should  be 
given  the  greater  prominence  have  thus  led  to  great 
difference  in  the  determination  of  the  power  to  be 
given  by  the  law  to  the  chief  executive  authority.  In 
some  governments  we  find  the  executive  authority  is 
simply  a  political  chief.^  This  is  the  position  which 
was  originally  assigned  to  the  executive  authority  by 
the  states  of  the  United  States.  In  these  states  the 
administrative  side  of  the  executive  power  is  often 
conferred  upon  a  series  of  officers  quite  distinct  from 
the  chief  executive  authority  and  very  largely  inde- 
pendent of  him,  who  are  spoken  of  in  the  constitutions 
as  administrative  officers.  In  other  governments 
the  political  power  has  been  brought  largely  under 
the  control  of  the  legislature,  and  the  position  of  the 
chief  executive  as  an  administrator  is  much  more 
important  than  his  position  as  a  political  authority. 
This  is  very  largely  true  of  Switzerland."  Finally,  in 
other  governments  the  chief  executive  authority  has 
been  recognized  both  as  a  political  authority  and  as 
the  head  of  the  administration.  This  is  the  case,  for 
example,  in  the  United  States  national  government. 

'  Even  as  a  political  chief  the  powers  of  the  executive  authority  often  vary 
greatly.  In  some  the  chief  executive  authority  possesses  the  veto  power,  in 
others  he  does  not;  in  some  he  will  have  a  large  power  of  ordinance,  in  others 
almost  none  at  all  except  such  as  is  delegated  to  him  by  the  legislature,  which 
may  be  very  chary  of  its  delegations. 

*  Lowell.  Government  and  Parties  in  Continental  Europe,  vol.  ii.,  p.  197. 


CHAPTER  II. 

THE  AMERICAN  CONCEPTION  OF  THE  EXECUTIVE  POWER 
IN  THE  LATTER  PART  OF  THE  EIGHTEENTH 

CENTURY. 

/ — As  exemplified  by  the  early  state  governments. 

The  American  conception  of  the  executive  power 
prevailing  at  the  time  of  the  adoption  of  the  United 
States  constitution  corresponded  with  that  part  of 
the  executive  power  which  has  been  called  political 
The  great  exception  to  this  statement  is  to  be  found 
in  the  fact  that  the  carrying  on  of  the  foreign  rela- 
tions was  not  included  within  the  powers  of  the  state 
governor.  This  exception  does  not,  however,  prove 
that  the  diplomatic  power  was  not  considered  a  part 
of  the  executive  power.  The  omission  of  the  diplo- 
matic power  from  among  the  powers  of  the  governor 
was  due  entirely  to  the  peculiar  position  of  the  colo- 
nies and  later  of  the  states.  The  care  of  the  for- 
eign relations  was  not  in  the  governor's  hands,  simply 
because  during  the  colonial  period  the  mother  coun- 
try, and  during  the  existence  of  the  states  as  sov- 
ereign states  the  Continental  Congress,  attended  to 
the  matter. 

To  a  similar  reason  is  due  the  fact  that  the  state 
governor   did   not    have  very   extensive   administra^ 

70 


HISTORY  OF  THE  EXECUTIVE.  71 

tive  powers.  Administrative  matters  outside  of  those 
directly  connected  with  the  miHtary  powers  of  the 
governor  had  not  been  attended  to  by  the  central 
colonial  government  but,  in  accordance  with  English 
principles  of  local  government,  by  various  officers  in 
the  local  districts  of  the  state  who  were  res^arded  as 
local  in  character  and  who  often  at  the  same  time 
discharged  judicial  functions.  These  officers  were  to 
act  in  accordance  with  laws  which  descended  into  the 
most  minute  details.  Thus  executive  instructions 
and  orders  were  unnecessary.  In  the  case  of  the 
administrative  matters  connected  with  justice,  almost 
the  only  matters  attended  to  by  the  governor  were 
embraced  in  the  powers  of  appointment  and  removal. 
The  every-day  matters  of  judicial  administration  were 
attended  to  either  by  the  courts  themselves  or  by  the 
officers  of  the  local  communities  in  which  the  courts 
had  jurisdiction.  The  facts  were  the  same  in  the 
branch  of  administration  known  as  internal  affairs. 
Here  the  central  colonial  government  had  little  to  do 
except  to  appoint  certain  of  the  officers,  namely,  the 
justices  of  the  peace  and  the  sheriffs  who,  after  their 
appointment,  attended  to  these  matters  in  accordance 
with  their  own  ideas  of  what  was  proper.  Further, 
the  branch  of  administration  known  as  internal  affairs 
was  really  a  very  small  one, — embracing  practically 
only  such  matters  as  the  preservation  of  the  peace  and 
the  care  of  the  poor  and  of  highways.  There  was 
thus  left  only  one  branch  of  administration  in  which 
the  central  colonial  government  had  any  important 
powers  to  exercise  ;  this  was  the  administration  of  the 
central  finances.  Here,  on  account  of  the  importance 
of  the   finances,   the  question  was  definitely  settled 


72  CENTRAL  ADMINISTRATION. 

before  the  Revolution  that  the  legislature  should  exer- 
cise a  very  important  control  over  the  finances  if  it 
did  not  take  them  into  its  absolute  administration. 
The  legislature  claimed  and  obtained  the  power  to 
vote  all  supplies  that  the  government  could  obtain,  to 
specify  in  its  appropriation  acts  for  what  purposes 
and  in  what  amounts  the  money  it  had  raised  should 
be  expended,  and  to  designate  the  officer  who  was 
to  have  charge  of  its  collection  and  disbursement. 
Further,  the  localities  attended  to  a  great  many  mat- 
ters which  were  of  interest  to  the  state  as  a  whole 
and  paid  the  expenses  which  attention  to  these  mat- 
ters necessitated,  so  that  even  the  financial  adminis- 
tration of  the  central  government  was  not,  on  the 
whole,  important. 

The  power  of  appointment,  which  has  often  been  re- 
garded as  distinctly  an  executive  power,  was  treated 
differently  in  different  states,  but  the  conception  that 
it  belonged  to  the  governor  in  the  case  of  other  than 
judicial  and  local  officers  was  not  very  clear.  In 
New  York,  however,  the  general  power  of  appoint- 
ment was  regarded  as  one  of  the  governor's  powers, 
but  even  in  New  York  the  governor's  power  of  ap- 
pointment was  subjected  to  a  legislative  control.  One 
fact  further  deserves  mention :  that  is,  the  governor 
possessed  neither  in  the  colonial  nor  in  the  original 
state  government  any  general  ordinance  power  even 
to  supplement  existing  law. 

The  only  purely  administrative  branch  attended  to 
by  the  central  colonial  and  the  state  government  was 
then  the  financial  administration  which  was  almost 
entirely  within  the  control  of  the  legislature.  The 
financial  administration  formed  the  model  which  the 


HISTORY  OF  THE  EXECUTIVE.  73 

framers  of  the  new  national  government  tried  to  copy 
when  they  came  to  build  up  a  great  administrative 
system,  but  which  their  successors  were  forced  by 
circumstances  to  abandon. 

//. — As  exemplified  by  the  position  of  the  President. 

I.  Original  position  of  the  President. — The  con- 
stitution of  the  United  States  provided  for  a 
President  in  whom  the  executive  power  was  to  be 
vested.^  What  the  meaning  of  the  words  "  executive 
power"  was  in  1787  has  just  been  shown.  The  grant 
to  the  President  of  the  executive  power  had  for  its 
effect  that  the  President  was  to  have  military  and 
political  power  rather  than  administrative  power. 
The  meaning  of  the  words  "  executive  power "  is 
explained  by  the  specific  powers  granted  to  the  Presi- 
dent by  the  constitution.  These  are  in  the  main  the 
same  powers  that  were  possessed  by  the  state  govern- 
ors ;  they  are  the  power  of  military  command,  the 
diplomatic  power,  the  limited  veto  power,  and  the 
power  of  pardon,  the  power  to  call  an  extra  session 
of  Congress,  to  adjourn  it  in  the  case  of  disagreement 
between  the  houses,  and  the  power  to  send  a  message 
to  Congress.  The  general  grant  of  the  executive 
power  to  the  President  meant  little  except  that  the 
President  was  to  be  the  authority  in  the  govern- 
ment that  was  to   exercise   the   powers^  afterwards 

'  Article  ii.,  section  i. 

'  We  have  few  if  any  judicial  determinations  as  to  the  meaning  of  the  words 
"  executive  power  '  in  the  constitution  of  the  United  States.  We  have,  how- 
ever, several  cases  with  regard  to  the  meaning  of  the  same  words  as  they  occur 
in  the  constitutions  of  the  states  which  vest  the  executive  power  in  the  gover- 
nor. The  courts  have  determined  that  these  words  when  used  in  the  state 
constitutions  mean  little,  if  anything.      For  example,  the  Supreme  Court  of 


74  CENTRAL  ADMINISTRATION. 

enumerated  as  his.  The  only  other  enumerated 
power  of  the  President  is  the  power  of  appointment.^ 
Finally,  it  is  to  be  noted  that,  in  accordance  with 
the  American  conception  of  the  executive  power,  the 
President  did  not  have  any  general  power  to  issue 
ordinances,  even  to  supplement  existing  law.  As  a 
general  thing,  the  only  ordinance  power  which  the 
President  may  exercise  is  the  power  to  issue  ordi- 
nances where  the  legislature  has  specifically  delegated 
to  him  the  power  to  regulate  a  given  subject.^  The 
great  exception  to  the  usual  rule  with  regard  to  the 
ordinance  po\Vers  of  the  President  is,  that  in  times  of 
war  the  war  power,  which  is  generally  recognized  as 

Vermont  has  said  :  "  There  are  no  powers  incident  to  the  executive  character 
of  a  chief  magistrate  of  this  state,  unless  they  are  obviously  necessary  to  carry 
into  effect  some  of  the  powers  expressly  given."  Ex  parte  Holmes,  12  Ver- 
mont 631,  635.  In  the  case  of  Field  vs.  People,  3  Illinois  79,  a  similar  con- 
clusion was  reached.  In  the  first  case  mentioned,  the  court  decided  that  the 
governor  did  not  have  the  power  to  give  up  a  fugitive  from  justice  who  had 
come  there  from  a  foreign  state,  and  based  its  decision  largely  upon  the  theory 
that  this  power  was  not  expressly  vested  in  the  governor  and  could  not,  in  view 
of  the  interpretation  which  the  court  put  upon  the  executive  power,  be  regarded 
as  having  been  granted  to  the  governor  as  a  result  of  the  grant  to  him  of  the 
executive  power.  In  the  Illinois  case,  the  court  held  that  where  a  power  of 
removal  had  not  been  granted  to  the  governor  by  the  constitution,  he  did  not 
have  the  right  to  remove  an  officer  notwithstanding  the  fact  that  under  the 
statute  such  officer  would,  in  the  absence  of  the  possession  by  the  governor  of 
such  a  power  of  removal,  have  a  life  tenure. 

'Article  ii.,  section  2,  paragraph  2,  provides  that  "The  President  shall 
nominate  and,  by  and  with  the  advice  and  consent  of  the  Senate,  shall  appoint 
ambassadors,  other  public  ministers  or  consuls,  judges  of  the  Supreme  Court, 
and  all  other  officers  of  the  United  States  whose  appointments  are  not  other- 
wise provided  for  and  which  shall  be  established  by  law  ;  but  the  Congress 
may  by  law  vest  the  appointment  of  such  inferior  officers  as  they  may  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or  in  heads  of  departments." 
Paragraph  3  adds  :  "  The  President  shall  have  power  to  fill  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate  by  granting  commissions  which 
shall  expire  at  the  end  of  their  next  session  "  ;  finally  Section  3  gives  to  the 
President  the  power  of  commissioning  all  the  officers  of  the  United  States. 

'An  exception  to  this  rule  is  to  be  found  in  the  case  of  the  army  and  navy 
regulations,  see  infra,  p.  85. 


HISTORY  OF  THE  EXECUTIVE.  75 

belonging  to  him,  is  susceptible  of  very  great  expan- 
sion, and  may  be  construed,  indeed  in  the  past  has 
been  construed,  as  giving  to  the  President  quite  an 
ordinance  power,  irrespective  of  any  action  taken  by 
Congress.^ 

It  will  be  seen,  from  this  enumeration  of  the  powers 
given  to  the  President,  that  the  conception  of  the 
executive  power  held  by  the  framers  of  the  national 
constitution  was  what  has  been  spoken  of  as  the 
political  power  and  the  power  of  appointment.  Be- 
yond the  power  of  appointment  the  President  had,  so 
far  as  the  express  provisions  of  the  constitution  were 
concerned,  no  control  over  the  administration  at  all. 

2.  Change  in  the  position  of  the  President. — But 
American  development  has  completely  changed  this 
conception  of  the  President's  position.  In  the  first 
place,  the  duty  imposed  upon  the  President  by  the 
constitution  to  see  that  the  laws  be  faithfully  exe- 
cuted,^ has  been  construed  by  Congress  as  giving  it 
the  power  of  imposing  duties  and  conferring  powers 
upon  the  President  by  statute,  and  has  led  to  the 
passage  of  almost  innumerable  laws  which  have 
greatly  increased  the  importance  of  the  President's 
position,  and  have  given  him  authority  relative  to  the 
details  of  many  administrative  branches  of  the  na- 
tional government.^  Powers  as  to  administrative 
details  are  also  recogrnized  as  being-  vested  in  the 
President  by  the  constitution,  even  in  the  absence  of 
such  statutes.^ 

'  See  Fisher,  "Suspension  of  Habeas  Corpus,"  P.  S.  Q.,  iii.,  p.  463. 

*  Article  ii.,  section  2. 

'See  Elmes,  Executive  Departments,  pp.  13  and  14. 

*  Supra,  p.  47  ;  see  also  United  States  vs.  McDaniel,  7  Peters,  i.     Thus  in 
the  case  of  Jn  re  Neagle,  135  United  States  i,  64,  68,  the  Supreme  Court  has 


76  CENTRAL  ADMINISTRATION. 

The  second  cause  of  the  change  in  the  position  of 
the  President  is  to  be  found  in  the  interpretation 
of  the  constitution  made  by  the  first  Congress  relative 
to  the  President's  power  of  removing  officers.  The 
constitution  did  not  give  this  power  to  any  authority 
expressly.  The  question  came  up  before  the  first 
Congress  in  the  discussion  of  an  act  organizing  the 
department  of  foreign  affairs.  Although  there  was  a 
difference  of  opinion  in  the  Congress  as  to  who,  under 
the  constitution,  possessed  the  power  to  remove  offi- 
cers, it  was  finally  decided  by  the  casting  vote  of  the 
Vice-President  as  president  of  the  Senate  that  the 
power  of  removal  was  a  part  of  the  executive  power, 
and  therefore  belonged  to  the  President.^  This 
was  the  recognized  construction  of  the  constitution 
for  more  than  three-quarters  of  a  century,  although  it 
did  not  meet  with  the  approval  of  some  of  the  most 
eminent  statesmen,  and  has  finally  received  the  ap- 
proval of  the  United  States  Supreme  Court.^  In 
1867,  however.  Congress  deliberately  reversed  its 
decision,  and  by  the  tenure-of-office  acts  of  1867-9 
decided  that  the  constitution  had  not  impliedly  or 
expressly  settled  this  point,  and  that  Congress  was 
therefore  the  body  to  decide  who  possessed  the  power 

held  that  the  President  is  not  limited  to  the  enforcement  of  acts  of  Congress, 
according  to  their  express  terms.  His  power  and  duty  to  see  that  the  laws  be 
faithfully  executed  includes  rights  and  obligations  growing  out  of  the  constitu- 
tion itself.  As  a  result  of  it  the  President  may  protect  an  officer  of  the  United 
States  in  the  discharge  of  his  duties. 

'  See  Fairlie,  "  The  Administrative  Powers  of  the  President,"  Michigan  Laio 
Review,  vol.  ii.,  p.  195.  It  will  be  noticed  that  this  view  is  quite  different  from 
that  which  has  been  held  by  the  state  courts  with  regard  to  the  power  of  the 
governor. 

*  See  Parsons  vs.  United  States,  167  U.  S.,  324.  Prior  to  this  case  this  con- 
struction was  approved  by  the  lower  courts  in  United  States  vs.  Avery,  Deady, 
204. 


HISTORY  OF  THE  EXECUTIVE.  77 

of  removal.  Congress  then  decided  that  the  power 
of  removal  of  Senate  appointees  belonged  to  the 
President  and  the  Senate.  For  twenty  years  this 
was  the  law  of  the  land,  though  no  one  was  able  to 
say,  on  account  of  the  obscurity  of  their  wording, 
what  was  the  exact  meanine  of  the  tenure-of-office 
acts.  Finally,  in  1887,  Congress  repealed  them.  The 
result  is  that  the  early  interpretation  of  the  constitu- 
tion must  be  regarded  as  the  correct  one  at  the 
present  time.^  Though  the  tenure-of-office  acts  had 
the  effect  of  temporarily  weakening  the  power  of  the 
President,  the  complete  power  of  removal  had  existed 
so  long  as  to  determine  the  position  of  the  President 
in  the  national  government,  and  has  been  of  incal- 
culable advantage  in  producing  an  efficient  and  har- 
monious national  administration.  The  benefits  which 
followed  the  determination  of  the  first  Conoress  on 
this  question,  now  approved  by  the  Supreme  Court, 
were  undoubtedly  the  reason  why  the  tenure-of-office 
acts  were  finally  repealed.  From  this  power  of  re- 
moval has  been  evolved  the  President's  power  of 
direction  and  supervision  over  the  entire  national 
administration.  To  it  is  due  the  recognition  of  the 
possession  by  the  President  of  the  administrative 
power. 

3.  Power  of  direction. — The  power  of  direction  and 
control  over  the  national  administration,  through 
whose  exercise  the  President  has  become  the  chief 
of  the  national  administration,  is  hardly  recognized 

'  It  is  true,  however,  that  the  tenure-of-office  acts  were  held  by  the  lower 
courts  of  the  United  States  to  be  constitutional,  United  States  vs.  Avery, 
Deady,  204,  but  the  present  view  of  Congress,  which,  since  the  repeal  of  the 
tenure-of-office  acts,  is  practically  the  same  as  that  which  was  originally  taken, 
has  been  approved  by  the  Supreme  Court  in  the  Parsons  case. 


78  CENTRAL  ADMINISTRATION. 

in  the  constitution.  The  only  provisions  from  which 
it  may  be  derived  are  those  which  impose  upon  him 
the  duty  to  see  that  the  laws  be  faithfully  executed/ 
and  permit  him  to  "require  the  opinion  in  writing  of 
the  principal  officer  in  each  of  the  executive  depart- 
ments upon  any  subject  relating  to  the  duties  of  their 
respective  offices,"^  but  perusal  of  the  early  acts  of 
Congress  organizing  the  administrative  system  of  the 
United  States  will  show  that  the  first  Congress  did 
not  have  the  idea  that  the  President  had  any  power 
of  direction  over  any  matters  not  political  in  charac- 
ter. The  acts  of  Congress  organizing  the  depart- 
ments of  foreign  affairs  and  war  did,  it  is  true, 
expressly  give  the  President  the  power  of  directing 
the  principal  officers  of  these  departments  how  they 
should  perform  their  duties,  but  these  were  depart- 
ments of  a  political  character.  The  act  organizing  the 
Treasury  Department^  contains  no  reference  to  any 
presidential  power  of  direction.  It  simply  says  that 
the  secretary  of  the  treasury  shall  generally  perform 
all  such  services  relative  to  the  finances  as  he  shall 
be  directed  to  perform,  and  the  context  shows  that 
reference  is  made  to  the  direction  of  Congress  and 
not  to  that  of  the  President.  The  debates  in  Con- 
gress corroborate  this  view.  Further,  the  fact  that 
the  secretary  of  the  treasury,  different  from  the  other 
secretaries,  is  to  make  his  annual  report  not  to  the 
President  but  to  Congress,  shows  that  Congress  in- 
tended,  after  the  manner  of  the  states,  to  keep  the 
finances  under  the  control  of  the  legislature. 

The  administration  of  the  finances,  which  it   has 

■Article  ii.,  section  2,  paragraph  i.  'Article  ii.,  section  2,  paragraph  i. 

^  September  2,  1789. 


HISTORY  OF  THE  EXECUTIVE.  79 

"been  shown  was  really  almost  the  only  non-political 
branch  attended  to  by  the  central  government  of  the 
states,  served  the  men  of  those  times  as  a  model  for 
the  purely  administrative  branches.  Thus  the  post- 
office  was  organized  at  first  in  such  a  way  as  to  remove 
it  from  the  control  of  the  President.  The  appoint- 
ment of  all  officers  in  the  post-office  was  given  to  the 
postmaster-general,  while  the  law  which  finally  organ- 
ized the  department  in  1825  had  nothing  whatever  to 
say  about  a  presidential  power  of  direction.  The 
original  absence  of  this  power  of  direction  is  com- 
mented upon  by  one  of  the  United  States  courts. 
The  court  says  ^ : 

The  legislature  may  prescribe  the  duties  of  the  office  at  the 
time  of  its  creation,  or  from  time  to  time  as  circumstances  may 
require.  If  those  duties  are  absolute  and  specific,  and  not  by 
law  made  subject  to  the  control  or  discretion  of  any  superior 
officer,  they  must  be  performed,  whether  forbidden  or  not,  by 
any  other  officer.  If  there  be  no  other  officer  who  is  by  law 
specially  authorized  to  direct  how  the  duties  are  to  be  performed, 
the  officer  whose  duties  are  thus  prescribed  by  law  is  bound  to 
execute  them  according  to  his  own  judgment.  That  judgment 
cannot  lawfully  be  controlled  by  any  other  person.  ...  As 
the  head  of  an  executive  department  he  [the  postmaster-general] 
is  bound,  when  required  by  the  President,  to  give  his  opinion  in 
writing  upon  any  subject  relating  to  the  duties  of  his  office.  The 
President,  in  the  execution  of  his  duty  to  see  that  the  laws  be 
faithfully  executed,  is  bound  to  see  that  the  postmaster-general 
discharges  "  faithfully  "  the  duties  assigned  to  him  by  law  ;  but 
this  does  not  authorize  the  President  to  direct  him  how  he  shall 
discharge  them." 

■United  States  vs.  Kendall,  5  Cranch  C.  C,  163,  272, 

*  See  also  Kendall  vs.  United  States,  I2  Peters,  524,  610,  where  Mr.  Justice 
Thompson  says  :  "  It  by  no  means  follows  that  every  officer  in  every  branch 
of   that    [the  executive]    department  is  under   the  exclusive  direction  of  the 


So  CENTRAL  ADMINISTRATION. 

The  court  admits,  however,  that  the  President 
might  remove  the  postmaster-general  from  office,  and 
it  is  from  this  power  of  removal  that  we  must  derive 
any  power  that  the  President  has  to  direct  and  con- 
trol the  acts  of  officials  in  those  departments  where 
the  law  has  not  expressly  provided  for  the  direction 
and  control  of  the  President.  The  influence  upon 
the  position  of  the  President  of  his  power  of  removal 
was  made  manifest  at  an  early  time  in  the  history  of 
the  country.  Notwithstanding  the  independent  posi- 
tion in  which  Congress  had  attempted  to  place  the 
secretary  of  the  treasury.  President  Jackson  was  able, 
through  his  power  of  removal,  to  exercise  a  power  of 
direction  as  effectually  over  the  head  of  the  treasury 
department  as  over  the  head  of  any  other  department 
of  the  government.  The  celebrated  United  States 
Bank  episode  is  good  evidence  of  the  actual  power 
which  the  President  possessed.  It  will  be  remem- 
bered that  when  Jackson  desired  to  weaken  the  posi- 
tion of  the  United  States  Bank  he  ordered  the  secretary 
of  the  treasury  to  withdraw  the  deposits  of  the  gov- 
ernment from  the  bank.  The  secretary  refused  to  do 
so,  was  removed  from  office,  and  a  secretary  was  ap- 
pointed who  was  willing  to  obey  the  orders  of  the 
President.  Jackson's  action  was  regarded  by  many 
as  improper  and  was  actually  censured  by  the  Senate 
but  afterwards  this  censure  was  expunged  from  the 
record,  and  the  Senate  at  least  must  be  regarded 
as  having  acquiesced  in  the  view  which  the  President 

President.  ...  It  would  be  an  alarming  doctrine  that  Congress  cannot 
impose  upon  any  executive  officer  any  duty  they  may  think  proper,  which  is  not 
repugnant  to  any  rights  secured  and  protected  by  the  constitution,  and  in  such 
cases  the  duty  and  responsibility  grow  out  of  and  are  subject  to  the  control 
of  the  law  and  not  to  the  direction  of  the  President." 


HISTORY  OF  THE  EXECUTIVE.  8i 

took  of  his  relations  even  to  those  departments  which 
were  accorded  the  most  independent  position. 

Of  so  much  force  was  this  power  of  removal  that  in 
1855,  less  than  twenty  years  after  the  giving  of  the 
decision  in  United  States  vs.  Kendall,  to  which  refer- 
ence has  been  made,  we  find  in  an  opinion  of  Mr. 
Gushing,  the  attorney-general,  the  following  recog- 
nition of  the  power  of  direction  of  the  President^  : 

I  think  .  .  .  the  general  rule  to  be  .  .  .  that  the 
head  of  department  is  subject  to  the  direction  of  the  President 
[this  was  said  in  relation  to  duties  imposed  by  statute  upon  a 
head  of  department].  I  hold  that  no  head  of  department  can 
lawfully  perform  an  official  act  against  the  will  of  the  President 
and  that  will  is,  by  the  constitution,  to  govern  the  performance  of 
all  such  acts.  If  it  were  not  thus,  Congress  might  by  statute  so 
divide  and  transfer  the  executive  power  as  utterly  to  subvert  the 
government  and  change  it  into  a  parliamentary  despotism  like 
that  of  Venice  or  Great  Britain,  with  a  nominal  executive  chief 
or  President  utterly  powerless — whether  under  the  name  of  Doge 
or  King  or  President  would  then  be  of  little  account  so  far  as 
regards  the  question  of  the  maintenance  of  the  constitution." 

This  is  of  course  an  extreme  view,  and  it  is  probably 
not  meant  by  it  that  the  President  has  any  dispensing 
power  by  which  he  may  relieve  an  officer  from  obey- 
ing a  positive  direction  of  law,  since  the  law,  when 
constitutional,  is  always  above  an  executive  order, 
but  it  indicates  at  any  rate  the  drift  of  public  opinion 
as  to  what  was  considered  to  be  the  position  which 
the  President  occupied.^ 

The  effect  of  recognizing  that  the  President  pos- 
sesses  these    powers    of   removal   and   direction   has 

'  7  Opinions  of  the  Attorneys-General,  453,  470. 
*  See  also  2  Opin.  Atty  -Gen.,  482. 

^  For  a  modern  illustration  of  the  President's  power  of  direction,  see  F.  P< 
Powers,  "  Railroad  Indemnity  Lands,"  P.  S.  Q.,  iv.,  pp.  452-482. 


82  CENTRAL  ADMINISTRATION. 

been,  as  has  been  said,  to  give  him  the  administrative 
power  and  to  make  him  not  merely  the  poHtical  head 
of  the  United  States  national  government  but  as  well 
the  head  of  its  administrative  system.  The  result  of 
our  national  administrative  development  has  been 
thus  a  great  enlargement  of  the  American  conception 
of  the  executive  power  as  exemplified  in  the  office  of 
the  President.  The  executive  power  in  the  United 
States  national  government  embraces  both  the 
powers  of  which  it  may  in  theory  be  composed,  and 
the  chief  executive  authority  is  at  the  same  time  the 
political  and  the  administrative  chief  of  the  govern- 
ment and  has  under  his  direction  and  control  the 
actions  of  all  the  officers  of  the  national  administration. 


CHAPTER  III. 

THE  ORGANIZATION    OF    THE  CHIEF  EXECUTIVE  AUTHOR- 
ITY IN  THE  UNITED  STATES. 

/. — The  President. 

It  may  be  said  that  the  executive  power  possessed 
by  the  President  of  the  United  States  embraces  first 
the  pohtical  power  which  is  sometimes  exercised  by 
and  with  the  advice  and  consent  of  the  Senate,  acting 
as  an  administrative  council,  as,  for  example,  in  the 
case  of  the  making  of  treaties  ;  and  second,  the  ad- 
ministrative power  which  is  of  especial  interest  to  the 
student  of  administrative  law.  This  administrative 
power  consists  of  two  classes  of  minor  powers  :  first, 
the  powers  which  relate  to  the  personnel  of  the  ad- 
ministration. These  have  been  discussed  in  the  his- 
torical treatment  of  the  President.  At  the  present 
time  they  are  complete  and  the  President  is,  there- 
fore, the  head  of  the  national  administration,  with 
power,  directly  or  indirectly,  to  appoint  (with  the 
consent  of  the  Senate  for  most  important  offices), 
remove,  and  direct  all  the  subordinate  officers  in  the 
national  administrative  system. 

In  the  second  place,  the  President  has  powers  rela- 
tive to  the  administrative  services  themselves, — ma- 
terial   rather   than    personal    powers.     That   is,    the 

83 


84  CENTRAL  ADMINISTRATION. 

President  has  the  right  himself  to  perform  a  series  of 
acts  in  the  different  branches  of  administration. 

I,  Administrative  powers. — As  has  already  been  in- 
timated, the  President  has  a  series  of  what  have  been 
called  material  powers  ;  that  is,  powers  which  do  not 
affect  personally  the  officers  of  the  administration. 
Some  of  these  powers  he  has  as  a  consequence  of 
some  specific  provision  of  the  United  States  constitu- 
tion, in  which  case  he  may  exercise  these  powers  in- 
dependently of  any  action  on  the  part  of  Congress. 
In  other  cases  he  has  powers  as  a  consequence  of  the 
action  of  Congress,  which  has  enacted  that  he  may 
take  action  in  certain  specified  cases.  Where  he  has 
a  power  as  a  consequence  of  the  action  of  Congress, 
the  extent  of  the  power  is  to  be  determined  by  a  con- 
sideration of  the  act  of  Congress  granting  the  power, 
and  the  continued  exercise  of  the  power  by  the  Presi- 
dent is  dependent  on  the  will  of  Congress,  which 
may,  at  any  time,  repeal  the  act  granting  the  powers. 
These  powers  of  an  administrative  and  material  char- 
acter may  be  classified  as  powers  of  ordinance  and 
powers  to  perform  acts  of  special  and  individual  ap- 
plication which  affect  some  particular  point  in  some 
particular  branch  of  the  administration. 

First,  the  ordinance  power  of  the  President. — The 
ordinances  which  the  President  may  adopt  are  of  two 
kinds  :  First,  those  which  are  issued  simply  as  a  re- 
sult of  the  exercise  of  his  power  of  direction  over  the 
officers  of  the  administration  and  which  are  sanctioned 
merely  by  his  power  of  removal ;  and  second,  those 
ordinances  which  are  intended  to  have  the  force  of 
law,  which,  therefore,  will  be  enforced  by  the  courts 
and  which  may  bind  not  merely  an  officer  of  the  gov- 


ORGANIZATION  OF  THE  EXECUTIVE.  85 

ernment,  but  as  well  an  individual  who  in  the  proper 
case  may  be  punished  criminally  for  refusal  to  obey 
them.  A  good  instance  of  the  first  class  of  ordi- 
nances or  general  regulations  issued  by  the  President 
is  to  be  found  in  the  civil  service  rule  promulgated 
in  1896,  which  forbids  the  removal  for  political  reasons 
of  officers  in  the  classified  civil  service  of  the  United 
States.  Such  an  ordinance  the  courts  regard  as  a 
matter  of  pure  administration.  They  therefore  have 
refused  to  enforce  it  and  have  declared  that  the  only 
redress  open  to  one  who  claims  that  he  has  been  re- 
moved contrary  to  its  provisions,  is  an  appeal  to  the 
President  to  remove  the  offending  officer.^ 

In  the  second  place  the  President  issues  ordinances 
which  the  courts  will  enforce. "^  Thus  the  President 
issues  army  and  navy  regulations.  The  force  and 
effect  of  such  regulations  have  several  times  been 
considered  by  the  Supreme  Court,  which  has  held 
that  an  officer  may  be  punished  even  by  imprison- 
ment as  the  result  of  the  adjudication  of  a  court 
formed  in  pursuance  of  such  regulations.^  Regula- 
tions of  this  character,  it  has  been  held,  also  may  be 
made  to  bind  not  only  officers  in  the  service  of  the 
United  States,  but  also  private  individuals.  Thus  it 
has  been  held  that  a  violation,  made  by  act  of  Congress 

'See  Carr  vs.  Gordon,  82  Federal  Reporter,  373;  Taylor  vs.  Kercheval, 
ibid.,  497;   Morgan  vs.  Nunn,  84  ibid.,  551;  White  vs.  Berry,  171  U.  S.,  366. 

^See  Boske  vs.  Comingore,  177  U.  S.,  459.  Here  a  collector  of  internal 
revenue  of  the  United  States  was  imprisoned  for  contempt  of  court  by  a  state 
court  for  refusing  to  produce  copies  of  certain  official  reports  which  the  regula- 
tions of  the  secretary  of  the  treasury  forbade  all  officers  to  make  use  of  for 
any  purpose  outside  of  the  collection  of  the  revenue.  He  was  on  habeas 
corpus  out  of  the  United  States  courts  released  from  custody  and  the  regula- 
tions under  which  he  claimed  to  act  were  held  to  protect  him. 

^  Ex  parte  Reed,  100  U.  S.,  13;  Swaim  vs.  United  States,  165  U.  S.,  553. 


86  CENTRAL  ADMINISTRATION. 

a  misdemeanor,  of  a  regulation  which  the  secretary 
of  war  has  been  authorized  by  Congress  to  make,  is 
properly  punishable  criminally.^  But  in  these  cases 
of  the  attempt  to  punish  criminally  violations  of  ex- 
ecutive regulations,  the  rule  of  strict  construction  is 
always  followed.  Thus,  where  a  manufacturer  of  a 
taxable  product  is  under  a  statute  punishable  for 
neglecting  to  do  "  any  of  the  things  required  by  law 
in  the  carrying  on  or  conducting  of  his  business,"  and 
no  penalty  is  specially  imposed  by  statute  upon  him 
for  not  keeping  such  books  and  accounts  as  the  com- 
missioner of  internal  revenue  may  require,  such  manu- 
facturer is  not  liable  to  be  punished  criminally  for 
failure  to  keep  the  books  required  by  the  commis- 
sioner, as  a  failure  to  do  a  thing  '*  required  by  law  " 
for  which  such  punishment  is  generally  provided  in 
the  statute.  The  court  in  its  opinion  in  this  case 
says  : 

Regulations  prescribed  by  the  President  and  by  the  heads  of 
departments,  under  authority  granted  by  Congress,  may  be  regu- 
lations prescribed  by  law,  so  as  lawfully  to  support  acts  done 
under  them  and  in  accordance  with  them,  and  may  thus  have,  in  a 
proper  sense,  the  force  of  law,  but  it  does  not  follow  that  a  thing 
required  by  them  is  a  thing  so  required  by  law  as  to  make  the 
neglect  to  do  the  thing  a  criminal  offence  in  a  citizen,  where  a 
statute  does  not  distinctly  make  the  neglect  in  question  a  criminal 
offence.' 

Furthermore,  such  executive  regulations,  whether 
issued  by  the  President  or  by  heads  of  departments 

'  United  States  vs.  Breen,  40  Federal  Reporter,  402.  See  also  Caha  vs. 
United  States,  152  U.  S.,  211,  where  an  individual  was  punished  criminally  for 
having  committed  perjury  before  a  tribunal  established  by  executive  regulation, 
a  statute  of  Congress  having  provided  for  punishing  perjury  "  before  a  compe- 
tent tribunal." 

*  United  States  vs.  Eaton,  144  U.  S.,  677-688. 


ORGANIZATION  OF  THE  EXECUTIVE.  87 

acting  under  his  direction,  must  conform  to  the  law, 
else  the  courts  will  refuse  to  enforce  them.^ 

It  has  sometimes  been  claimed  that  the  President 
has  the  authority  to  issue  certain  of  these  general 
regulations  which  bind  the  citizen  as  a  result  of  some 
constitutional  power  which  he  possesses.  Thus,  it  is 
said  that  certain  of  the  army  regulations  are  issued 
by  the  President,  not  as  a  result  of  the  exercise  of 
the  power  delegated  by  Congress,  but  as  a  result  of 
the  exercise  of  his  powers  as  commander-in-chief.^ 

The  extent  to  which  the  administrative  law  of  the 
national  government  is  to  be  found  in  executive  regu- 
lations is  not  ordinarily  appreciated. 

There  are  in  fact  many  elaborate  systems  of  executive  regu- 
lations governing  the  transaction  of  business  in  all  the  various 
branches  of  the  administration.  These  include  organized  codes 
of  regulations  for  the  army  and  navy,  postal  service,  the  patent 
office,  pension  office,  the  land  office,  the  Indian  service,  the  cus- 
toms, internal  revenue,  and  revenue  cutter  service,  the  consular 
service,  and  the  rules  governing  examinations  and  appointments 
to  the  whole  subordinate  civil  service,  and  in  addition  to  these 
systematized  rules  there  is  an  enormous  mass  of  individual  regu- 
lations, knowledge  of  which  is  limited  to  the  few  persons  who 
have  to  apply  them  and  to  those  whom  they  affect.' 

A  power  somewhat  akin  to  that  of  ordinance  is  the 
power  to  determine  by  presidential  proclamation  the 
existence  of  states  of  fact  when  certain  laws,  up  to 

'  See  Morrill  vs.  Jones,  io6,  U.  S.,  466.  Here  Congress  gave  the  secretary 
of  the  treasury  the  power  to  issue  regulations  relative  to  the  importation  free 
of  duty  of  animals  imported  for  breeding  purposes.  A  regulation  confining 
the  importation  to  animals  of  superior  stock  was  held  to  be  not  in  conformity 
to  law  and  was  not  enforced.     See  also  Merritt  vs.  Welsh,  104  U.  S. ,  694. 

^  See  In  re  Smith,  23  Ct.  of  CI.,  452,  459,  and  also  United  States  vs.  Eliason, 
16  Peters,  291,  301.     See  also  Wyman,  Administrative  Law,  p.  287  et  seq. 

^  Fairlie,  "  The  Administrative  Power  of  the  President,"  Michigan  Law 
Review,  vol.  ii.,  pp.  190-205. 


SS  CENTRAL  ADMINISTRATION. 

then  held  in  abeyance,  will  at  once  go  into  effect.  A 
marked  instance  of  the  exercise  of  such  a  power  is  to 
be  found  in  the  proclamations  issued  by  the  President 
as  a  result  of  the  use  of  the  power  granted  to  him  by 
the  reciprocity  clause  of  the  tariff  act  of  1890.  This 
act  provided  that  if  the  President  should  determine 
that  certain  countries  were  not  treating  the  United 
States  fairly  he  should  issue  a  proclamation  to  that 
effect,  and  that  in  that  case  the  free  list  as  to  such 
countries  should  be  suspended  ;  and  certain  rates  of 
duty  provided  for  in  the  act  of  Congress  should  at 
once  be  imposed  on  the  articles  imported  from  such 
countries.  The  grant  of  such  a  power  to  the  presi- 
dent is  held  constitutional  by  the  Supreme  Court.^ 
The  Supreme  Court,  by  a  majority  vote,  determined 
that  the  grant  of  such  a  power  to  the  President  was 
not  a  delegation  of  legislative  power ;  for,  as  the 
court  said : 

Congress  itself  prescribed  in  advance  the  duties  to  be  levied 
.  .  .  The  words  '  he  may  deem  '  .  .  .  implied  that  the 
President  would  examine  the  commercial  regulations  of  other 
countries  .  .  .  and  form  a  judgment  as  to  whether  they 
were  reciprocally  equal  and  reasonable,  or  the  contrary,  in  their 
effect  upon  American  products.  But  when  he  ascertained  the 
fact  that  duties  and  exactions  reciprocally  unequal  and  unreason- 
able were  imposed  ...  it  became  his  duty  to  issue  a  proc- 
lamation, declaring  the  suspension  as  to  that  country  which 
Congress  had  determined  should  occur.  .  .  .  The  President 
was  the  mere  agent  of  the  law-making  department  to  ascertain  and 
declare  the  event  upon  which  its  express  will  was  to  take  effect.' 

The  delegation  of  legislative  power  to  the  President 
was  regarded  by  the  whole  court  as  unconstitutional, 

'  Field  vs.  Clark,  143  U.  S..  649:  see  also,  the  Brig  Aurora,  7  Cranch,  382, 
^  Cited  from  Fairlie,  "The  Administrative  Power  of  the  President." 


ORGANIZATION  OF  THE  EXECUTIVE.  89 

— a  doctrine  which,  to  say  the  least,  is  difficult  of 
reconciliation  with  the  view  the  court  has  taken  in 
other  cases  as  to  the  constitutionality  of  executive 
regulations. 

Second,  power  to  perfomn  special  acts  of  individual 
application.  The  constitutional  power  of  the  Presi- 
dent to  see  that  the  laws  be  faithfully  executed  has 
been  construed,  as  has  been  pointed  out,  as  giving 
the  President  a  somewhat  undefined  power  which 
may  be  exercised  independently  of  any  action  upon 
the  part  of  Congress.^  As  a  result  of  the  exercise  of 
such  a  power  the  President  may  perform  acts  of 
special  and  individual  application.  Thus  he  may 
order  that  protection  be  afforded  to  a  judge  of  the 
Supreme  Court  on  circuit,  and  any  one  acting  upon 
such  an  order  will  be  protected  from  prosecution  by 
state  authority,  even  for  so  serious  a  charge  as  murder.^ 

In  addition  to  the  acts  performed  as  a  result  of  the 
exercise  of  his  constitutional  powers,  the  President 
also  has,  as  a  result  of  the  exercise  of  powers  vested 
in  him  by  Congress  by  special  statutory  provisions, 
the  right  to  do  a  long  series  of  acts  which  affect  only 
a  single  case.  Thus,  Congress  has  authorized  the 
President  to  permit  an  advance  of  money  to  disburs- 
ing officers^;  to  reserve  from  settlement  such  portion 
of  the  public  lands  as  in  his  judgment  is  valuable  as 
the  site  of  a  future  military  post.^  An  enumeration 
of  such  cases  would  be  both  tedious  and  unprofitable, 
but  a  large  part  of  the  work  of  the  national  adminis- 
tration is  performed  as  the  result  of  the  exercise  of 
such  powers. 

'  See  /;/  re  Neagle,  135  U.  S.,  i.  ^ Ibid, 

'Williams  vs.  United  States,  i  Howard,  290. 
*  See  Wilcox  vs.  Jackson,  13  Peters,  498. 


90  CENTRAL  ADMINISTRATION. 

In  the  exercise  of  the  powers  granted  to,  and  the 
performance  of  the  duties  imposed  upon,  the  Presi- 
dent by  the  constitution  or  statutes  of  Congress,  it  is 
not  necessary  that  the  President  act  personally.  Per- 
formance by  the  head  of  an  executive  department  is 
regarded  as  performance  by  the  President,  who  is 
considered  as  acting  through  the  heads  of  depart- 
ments and  as  responsible  for  what  they  do.^  The 
only  exceptions  to  this  statement  are  to  be  found  in 
the  case  of  acts  of  vast  political  importance,  such  as 
the  suspension  of  the  privilege  of  the  writ  of  habeas 
corpus,  and  acts  of  a  judicial  character.  In  the  case 
of  the  first  class  of  acts  it  has  been  intimated  that  the 
President  must  act  by  proclamation  and  that  a  gen- 
eral order  of  the  war  department  may  not  be  re- 
garded by  the  courts  as  the  act  of  the  President 
where  such  order  purports  to  suspend  the  privilege 
of  the  writ  of  habeas  corpus.^  In  the  case  of  judicial 
acts  it  has  been  held  that  if  the  performance  of  the 
act  is  by  the  statute  entrusted  to  the  President  he 
must  act  personally,^  but  where  the  record  of  a  court- 
martial  shows  that  the  sentence  of  the  court  has  been 
approved  by  the  President  as  provided  in  the  statute, 
such  a  statement  shows  sufficient  compliance  with  the 
statute,  although  the  record  does  not  show  that  the 
President  actually  affixed  his  signature  to  the  approval 
of  the  sentence.'' 


'Wilcox  vs.  Jackson,  13  Peters,  498,  513;  United  States  vs.  Eliason.  16 
Peters,  291;  Confiscation  Cases,  20  Wallace,  92,  109. 

"^  Ex  parte  Field,  5  Blatchford,  63. 

^  Runkle  vs.  United  States,  122  U.  S.,  543,  556. 

*  United  States  vs.  Page,  137  U.  S.,  673-678.  See  on  the  general  subject  of 
the  delegation  of  powers  by  the  President  and  heads  of  departments,  Wyman, 
Administrative  Lavj,  p.  204  et  seq. 


I 


ORGANIZATION  OF  THE  EXECUTIVE.  91 

It  has  been  held  that  the  power  of  direction  and 
supervision  is  always  accompanied  by  the  correlative 
right  of  appeal.'  The  doctrine  which  has  just  been 
laid  down  as  to  the  relations  of  the  President  and 
the  heads  of  departments  prevents,  however,  the  appli- 
cation of  this  rule  to  the  President.  Notwithstand- 
ing the  President  has  the  power  of  direction,  no  right 
of  appeal  to  the  President  from  the  decision  of  the 
head  of  a  department  is  recognized,  for  the  President 
is  regarded  as  having  acted  through  the  head  of  a 
department.^  But  it  is  held  that  where  a  head  of 
a  department  attempts  to  decide  a  matter  not  within 
his  jurisdiction  an  appeal  may  be  taken  to  the  Presi- 
dent on  the  question  of  jurisdiction.^ 

2.  Remedies  against  the  action  of  the  President. — 
The  position  of  the  President  is  one  of  such  dignity 
and  importance  that  it  has  been  considered  improper 
to  offer  to  an  individual  the  same  remedies  against 
the  action  of  the  President  which  are  offered  against 
the  action  of  an  ordinary  public  official.  In  the  first 
place,  the  President  is  not  regarded  as  subject  to  the 
process  of  the  courts.  Thus  the  courts  have  no 
power  to  subpoena  the  President.  This  was  held  in 
the  famous  trial  of  Aaron  Burr  : 

Chief  Justice  Marshall,  who  presided  at  this  trial  and  issued 
the  subpoena,  is  reported  to  have  said:  "  I  suppose  it  will  not  be 
alleged  in  this  case  that  the  President  ought  to  be  considered  as 
having  offered  a  contempt  to  the  court  in  consequence  of  his 
not  having  attended,  notwithstanding  the  subpoena  was  worded 

'  Butterworth  vs.  United  States,  ii2  U.  S.,  50,  57;  see  also  Bell  &j.  Hearne, 
19  Howard,  252. 

^9  Opinions  of  the  Attorneys-General,  462  ;   10  ibid.,  526. 

^15  ibid.,  94,  100,  which  collects  and  reviews  all  the  opinions  of  the  attorneys- 
general  on  this  point. 


92  CENTRAL  ADMINISTRATION. 

agreeably  to  the  demand  of  the  defendant.  The  court  would 
indeed  not  be  asked  to  proceed  as  in  the  case  of  an  ordinary  indi- 
vidual." Again,  he  is  reported  as  saying:  "  In  no  case  of  this  kind 
would  the  court  be  required  to  proceed  against  the  President  as 
against  an  ordinary  individual.  The  objections  to  such  a  course 
are  so  strong  and  obvious  that  all  must  acknowledge  them.  In 
this  case,  however,  the  President  has  assigned  no  reason  whatever 
for  withholding  the  paper  called  for.  The  propriety  of  with- 
holding it  must  be  decided  by  himself,  not  by  another  for  him; 
of  the  weight  of  the  reasons  for  and  against  producing  it  he 
himself  is  judge."  ' 

Furthermore  the  courts  will  never  attempt  to  exer- 
cise such  a  control  over  the  acts  of  the  President  as 
will  bring  them  in  direct  conflict  with  him.^ 

The  only  cases  where  the  courts  can  exercise  any 
control  over  the  President  are  those  in  which  a  regu- 
lation or  order  of  the  President  comes  up  before  them 
for  execution  when,  if  they  regard  it  as  an  act  in  ex- 
cess of  the  President's  powers,  they  may  refuse  to 
enforce  it,  and  declare  it  null  and  void.^  Even 
in    these    cases    where    the    acts    of   the   President 

^American  and  English  Encyclopedia  of  Law,  2d  ed.,  vol.  vi.,  p.  loig,  note 
lo  ;  see  Hartranft's  "  Appeal,"  85  Pennsylvania  State,  433  ;  see  also  Durand  vs. 
Ilollins,  4  Blatchford,  451,  which  claims  that  the  President  is  neither  civilly 
nor  criminally  responsible  to  the  courts. 

*  Mississippi  715.  Johnson,  4  Wallace,  475.  In  this  case  the  attempt  was  made 
to  get  an  injunction  from  the  United  States  courts  to  restrain  the  President 
from  executing  a  law  which  it  was  claimed  was  unconstitutional.  The  court, 
however,  refused  to  take  jurisdiction  and  to  issue  the  writ  and  intimated  that 
in  no  case  would  the  courts  take  action  of  this  character. 

^  Little  vs.  Barreme,  2  Cranch,  170.  In  this  case  the  attempt  was  made  to 
hold  an  officer  of  the  navy  responsible  in  damages  for  having  carried  out  a 
proclamation  of  the  President,  which,  it  was  claimed,  was  contrary  to  the  law. 
The  officer  attempted  to  plead  his  instructions,  but  the  court  held  that  he  was 
responsible,  and  in  this  collateral  way  determined  that  the  proclamation  of  the 
President,  which  was  being  considered  in  the  suit,  was  illegal.  See  also  the 
Schooner  Orono,  i  Gallison  C.  C,  137;  Ex  parte  Merriman ;  Taney's  Re- 
ports,  246. 


ORGANIZATION  OF  THE  EXECUTIVE.  93 

come  up  collaterally  for  consideration,  and  where  the 
courts  are,  on  that  account,  in  no  danger  of  being 
brought  into  personal  conflict  with  the  President, 
they  will  refuse  to  interfere  if  the  act  complained  of 
has  been  done  by  the  President  in  the  exercise  of  a 
power  regarded  by  the  courts  as  political  in  character. 
One  of  the  best  cases  upon  this  point  is  one  rising  out 
of  the  trouble  in  Rhode  Island  known  as  Dorr's  Re- 
bellion.^ The  circuit  court  in  a  trespass  case  refused 
to  admit  evidence  as  to  the  formation  of  Dorr's  gov- 
ernment, and  as  to  its  representative  character.  On 
appeal  to  the  Supreme  Court,  its  decision  was  upheld 
on  the  ground  that  Congress  had  vested  the  power  of 
determining  the  validity  of  the  state  government  in 
the  President  by  vesting  in  him  the  power  to  call  out 
the  militia  in  case  of  insurrection  in  any  state.  Chief 
Justice  Taney,  who  delivered  the  opinion  of  the  court, 
says  (page  43)  : 

By  this  act  the  power  of  deciding  whether  the  exigency  had 
arisen  upon  which  the  government  of  the  United  States  is  bound 
to  interfere,  is  given  to  the  President  .  .  .  and  the  President 
must,  of  necessity,  decide  which  government  and  which  party  is 
unlawfully  arrayed  against  it  before  he  can  perform  the  duty  im- 
posed upon  him  by  the  act  of  Congress.  After  the  President  has 
acted  and  called  out  the  militia,  is  the  circuit  court  of  the  United 
States  authorized  to  inquire  whether  he  is  right  ?  ...  If  the 
judicial  power  extends  so  far,  the  guarantee  contained  in  the  con- 
stitution of  the  United  States  is  a  guarantee  of  anarchy  and  not 
of  order.  .  .  .  It  is  true  that  in  this  case  the  militia  were  not 
called  out  by  the  President,  but  upon  the  application  of  the  gov- 
ernor under  the  charter  government,  the  President  recognized 
him  as  the  executive  power  of  the  state,  and  took  measures  to 
call  out  the  militia  to  support  his  authority,  if  it  should  be  found 
necessary    for    the    general  government   to  interfere,  and    it    is 

■  Luther  vs.  Borden,  7  Howard,  U.  S.  i. 


94  CENTRAL  ADMINISTRATION. 

admitted  in  the  argument  that  it  was  the  knowledge  of  this  decision 
that  put  an  end  to  the  armed  opposition  to  the  charter  govern- 
ment, and  prevented  any  further  efforts  to  establish  by  force  the 
proposed  constitution.  The  interference  of  the  President,  there- 
fore, by  announcing  his  determination,  was  as  effectual  as  if  the 
militia  had  been  assembled  under  his  orders.  And  it  should  be 
equally  authoritative.  ...  At  all  events  it  [this  power]  is  con- 
ferred [upon  the  President]  by  the  constitution  and  laws  of  the 
United  States,  and  must  therefore  be  respected  and  enforced  in 
its  judicial  tribunals. 

The  Supreme  Court  of  the  United  States  has  also 
held  that  the  courts  may  not  review  collaterally  the 
decisions  of  the  President  as  to  the  boundaries  of 
foreign  states,^  as  to  the  recognition  of  belligerency,^ 
and  as  to  the  payment  of  claims  based  upon  inter- 
national awards.^ 

//. — The  state  governor. 

I.  The  governor  a  political  officer. — The  constitutions 
of  most  of  the  states  of  the  American  Union,  like  the 
constitution  of  the  United  States,  vest  the  executive 
power  in  a  chief  executive,  who,  in  the  case  of  the 
states,  is  now  universally  called  the  governor."* 
The    meaning    of    the    words  "executive    power"  in 

'  Foster  vs.  Neilson,  2  Peters,  253  ;    Williams  vs.  Suffolk  Ins.  Co.,  13  Peters, 

415- 

**  U.  S.  vs.  Palmer,  3  Wheaton,  610. 

^U.  S.  vs.  Blaine,  139  U.  S.,  306.  See  also  In  re  Cooper,  143  U.  S.,  472  ; 
Georgia  vs.  Stanton,  6  Wall  50;   Martin  vs.  Mott,  12  Wheaton,  19. 

For  a  good  description  of  the  position  and  power  of  the  President,  see 
Baldwin,  Modern  Political  Institutions,  chap,  iv.,  entitled  "Absolute  Power, 
an  American  Institution"  ;  see  also,  Woodburn,  The  American  Republic  and  its 
Government,  chapter  on  "The  Presidency,"  which  gives  a  very  good  exposition 
of  the  distinctly  political  powers  of  the  President.  See  also  Fairlie,  "  The  Ad- 
ministrative Powers  of  the  President,"   Michigan  Law  Review.,  vol.  ii.,  p.  190. 

*  In  former  times  the  officer  we  now  know  as  governor  was  sometimes  called 
President. 


ORGANIZA  TION  OF  THE  EXECUTIVE.  95 

this  connection  is  the  same  as  is  that  of  the  same 
words  used  in  the  constitution  of  the  United  States 
with  reference  to  the  President.  That  is,  Httle  if  any 
power  is  to  be  regarded  as  vested  in  the  governor  as 
a  result  of  the  grant  to  him  of  the  executive  power/ 
In  order  to  find  out  exactly  what  is  the  position  of 
the  governor  in  the  system  of  government  adopted  in 
any  one  of  the  states  of  the  American  Union,  we  have 
to  look  throuQfh  the  constitution  of  that  state  for  the 
powers  which  are  specifically  and  expressly  granted  to 
him.  Indeed,  a  consideration  of  these  enumerated 
powers,  as  they  are  called,  is  even  more  necessary  in 
the  case  of  the  orovernor  than  in  the  case  of  the 
President  of  the  United  States.  For  the  state  courts 
have  not  derived,  as  has  the  Supreme  Court  of  the 
United  States,  any  very  large  powers  from  such  a 
general  power  or  duty  as  the  duty  to  see  that  the  laws 
be  faithfully  executed.  In  other  words,  the  principle 
of  narrow  construction  is  more  commonly  adopted 
with  regard  to  the  powers  of  the  governor  than  with 
regard  to  those  of  the  President.^ 

It  has  been  already  shown  that  the  original  Ameri- 
can conception  of  the  governor  was  that  of  a  political 
rather  than  an  administrative  officer  The  original 
political  character  of  the  governor  has  been  more 
and  more  emphasized,  first,  because  of  the  grant 
to  him  in  the  course  of  our  constitutional  history 
of  rather  larger  political  powers  than  he  originally 
possessed  ;  and  second,  because  the  legislatures  of 
the  states,  different  from  the  Congress  of  the  United 
States,  have  not  seen  fit  to  confer  upon  him  powers 

'See  Ex  parte  Holmes,  I2  Vermont,  631  ;  Field  vs.  People,  3  Illinois,  79; 
Fox  vs.  McDonald,  loi  Alabama,  51  ,  French  vs.  State,  141  Indiana,  618. 
supra  p,  73.  ^  E.g.  see  In  re  Fire,  etc.^  Commissioners,  19  Col.,  482,  503. 


96  CENTRAL  ADMINISTRATION. 

of  an  administrative  character,  while  the  constitutions 
of  the  states  have  very  commonly  assigned  expressly 
to  other  officers  in  the  state  government  many  of  the 
administrative  powers  which  it  is  now  recognized  that 
the  President  possesses. 

The  political  powers  of  the  governor  consist,  in  the 
first  place,  of  military  powers  which  are  always  exer- 
cised subject  to  the  limitations  contained  in  the 
United  States  constitution.  This  provides  that  the 
militia  of  the  several  states  shall  be  under  the  com- 
mand of  the  President  when  in  the  actual  service  of 
the  United  States.^  These  military  powers  consist 
both  of  the  power  of  command  and  that  of  military 
administration.  We  find  very  seldom,  if  ever,  a  state 
secretary  of  war.^  The  absence  of  such  an  officer  is 
due  probably  to  the  fact  that  the  English  crown  pos- 
sessed, at  the  time  the  office  of  state  governor  was 
established,  the  military  administration  which  was 
regarded  as  a  part  of  the  royal  prerogative.  In 
several  of  the  states  the  governor  may  not  act  per- 
sonally in  the  field  unless  advised  so  to  do  by  a  reso- 
lution of  the  legislature.^  As  commander  in  chief, 
the  governor  has  very  commonly  power  to  call  out 
the  militia  in  the  case  of  insurrection,  invasion,  or 
resistance  to  the  execution  of  the  laws.^  In  some 
cases  here  again  the  exercise  of  his  power  by  the 
governor  is  conditioned  upon  the  passage  of  a  reso- 
lution by  the  legislature.^ 

'  Constitution,  art.  ii.,  sec.  2,  par.  i. 
'  Stimson,  American  Statute  Law,  p.  41,  sec.  202. 

^  This  is  so  in  Alabama  and  Kentucky,  Maryland  and  Missouri ;  Stimson, 
op.  cit.,  sec.  297. 

*  Stimson,  op.  cit.,  sec.  2q8. 

*  This  is  the  case  in  New  Hampshire,  Massachusetts,  and  Tennessee,  in  the 
case  of  insurrection  ;  and  in  Texas  in  the  case  of  invasion.     Ibid. 


ORGANIZATION  OF  THE  EXECUTIVE.  97 

The  second  class  of  political  powers  possessed  by 
the  state  governor  are  to  be  found  in  the  powers  he 
possesses  over  the  action  of  the  legislature.  Thus, 
the  governor  very  generally  has  what  has  come  to  be 
known  as  the  veto  power.  The  veto  power  includes 
in  many  cases  the  power  to  veto  items  in  appropria- 
tion bills,  and  usually  consists  in  the  power  to  demand 
from  the  legislature  a  reconsideration  of  a  bill  objec- 
tionable to  him.  On  reconsideration  the  bill  may  be 
passed  usually  by  a  two-thirds  vote,  in  some  cases  a 
three-fifths,  and  finally  in  some  cases  by  a  simple 
majority.^ 

The  governor  also  has  the  power  to  adjourn  the 
legislature  in  case  the  two  houses  disagree  as  to  the 
time  of  adjournment,^  the  power  to  call  extra  sessions 
of  the  legislature  '^  and  the  power  and  duty  to  send  to 
the  legislature  messages  in  which  he  is  to  give  to  that 
body  such  information  as  to  the  condition  of  the 
state  and  to  recommend  such  measures  as  he  deems 
proper.^ 

In  the  third  place,  the  governor  has  very  generally 
the  power  to  grant  pardons,  reprieves,  and  commuta- 
tions of  sentence  and  may  remit  fines  and  forfeitures.' 
In  some  instances  treason  and  conviction  on  impeach- 
ment are  excepted  from  his  pardoning  power.^  In 
certain  of  the  states  the  power  in  all  cases  is  condi- 
tioned upon  obtaining  the  consent  of  the  council,^ 
or  the  senate,^  or  that  of  the  judges  of  the  supreme 
court,  and  the  attorney-general  or  a  majority  of  them,^ 
or  of  a  board  of  pardons  consisting  of  "  state  officers."  ^ 

'  Stimson,  section  305  C.  *  Ibid.,  sections  160^  163,  164. 

'  Ibid.,  section  278.  '  Ibid.,  section  i6i. 

^  Ibid.,  section  277.  '  Massachusetts,  Maine,  and  New  Hampshire. 

*  Ibid.,  section  280.  *  Rhode  Island.  *  Nevada  and  Florida. 

7 


98  CENTRAL  ADMINISTRATION. 

Finally  the  governor  has  in  some  cases  the  power 
to  proclaim,  in  accordance  with  the  law,  the  time  of 
general  elections.  This  power  is  sometimes  pos- 
sessed by  the  secretary  of  state. 

2.  Ad7ninistrative  powers. — While  the  political 
powers  of  the  governor  have  increased,  he  has  not 
been  able  to  increase  the  administrative  powers  which 
he  may  have  possessed  at  the  beginning  of  our  history 
as  an  independent  community.  Indeed  he  has  lost 
some  of  the  most  important  administrative  powers 
which  he  then  possessed.  The  first  among  these 
powers  to  be  considered  is  the  power  of  appointment. 

First,  power  of  appointment. — It  may  be  laid  down 
as  a  general  rule  of  the  constitutional  law  of  the  states 
that  the  grant  to  the  governor  of  the  executive  power 
does  not  in  and  of  itself  carry  with  it  any  power  of 
appointment.  In  order  that  the  governor  may  possess 
the  power  of  appointment,  it  must  be  expressly 
granted  to  him  by  the  state  constitution  or  by  an  act 
of  the  state  leg^islature.  This  rule  is  true  both  as  to 
officers  of  the  central  state  o-overnment^  and  as  to 
local  officers.'  In  some  of  the  early  state  constitu- 
tions, particularly  in  the  first  constitution  of  the 
state  of  New  York,  the  governor  had  large  powers 
of  appointment,  both  of  the  officers  of  the  central 
state  government  and  of  the  local  officers.  As  a 
general  thing,  however,  he  was  subject  in  the  exer- 
cise of  this  power  to  the  necessity  of  obtaining  the 
consent  of  some  body  representative  of  the  legisla- 
ture.    In  the  case  of  the  state  of  New  York,  this  body 

•  Pennsylvania.     Ibid.,  section  i6o. 

'  French  vs.  State,  141  Indiana,  618. 

^  Fox  vs.  McDonald.  loi  Alabama,  51  ;  State  vs.  George,  22  Oregon,  142. 


ORGANIZATION  OF  THE  EXECUTIVE.  99 

was  known  as  the  council  of  appointment  and  was 
formed  of  members  of  the  Senate  elected  by  the 
assembly.^  In  1801,  however,  the  power  was  given  to 
each  member  of  the  council  of  appointment  of  the 
state  of  New  York  to  nominate  for  appointment.^ 
The  division  of  responsibility  for  appointments  re- 
sulting from  this  amendment  resulted  in  great  evil. 
The  patronage  of  the  central  government  of  the  state 
was  very  large.^  The  only  way  in  which  it  appeared 
to  the  people  of  that  day  that  this  evil  could  be 
remedied  was  the  diminution  of  the  patronage  of  the 
governor.  This  was  secured  by  the  constitution  of 
1 82 1  by  abolishing  the  council  of  appointment  and 
providing  that  the  heads  of  the  executive  depart- 
ments of  the  central  state  government  should  be  ap- 
pointed by  the  legislature,  as  had  been  the  rule  from 
the  beginning  in  both  Massachusetts  and  Virginia. 
In  the  case  of  the  local  officers,  the  patronage  of  the 
governor  was  diminished  by  the  adoption  of  the 
elective  principle.  The  elective  principle  was  ex- 
tended by  the  constitution  of  1846  to  many  of  the 
officers  of  the  central  state  government.  The  change 
from  the  appointive  to  the  elective  system,  while  due 
in  large  degree  to  the  belief  that  the  evils  which  had 
accompanied  the  appointive  system  could  thus  be 
remedied,  was  due  also  to  the  great  democratic  move- 
ment which  is  visible  in  almost  all  parts  of  the  civil- 
ized world  about  the  middle  of  the  nineteenth  century. 
The  change  from  the  appointive  to  the  elective 
system,  whose  introduction  in  the  state  of  New  York 

'  First  Constitution  of  New  York,  art.  xxiii. 
'  Amendment  v.  to  the  First  Constitution. 

'In  1821,  the  number   of  civil  appointees  was   7000  ;  that  of  military  ap- 
pointees, 8000  ;  see  schedule  in  Clarke's  Debates  of  the  Convention  of  iSst. 


loo  CENTRAL  ADMINISTRATION. 

has  been  noticed,  was  made  in  most  of  the  states  of 
the  American  Union,  so  that  soon  after  the  middle 
of  the  nineteenth  century  the  governor's  powers  of 
appointment  had  been  almost  entirely  destroyed. 
Since  that  time,  however,  there  has  been  somewhat 
of  a  reaction.  Amendments  to  the  state  constitution 
and  statutes  of  the  legislature  have  provided  new 
officers  unknown  to  the  original  constitutions,  and 
these  officers  are  frequently  to  be  appointed  by  the 
governor  subject  to  confirmation  by  the  senate. 
Finally,  the  general  power  has  been  given  to  the 
governor  quite  commonly  of  appointing  to  any  posi- 
tion for  which  no  other  method  of  appointment  or 
election  has  been  provided,^  and  to  fill  vacancies  ex- 
cept in  the  principal  state  offices  which  art  filled  by 
the  legislature."  The  result  is  that  at  the  present 
time  the  state  governor  ordinarily  has  tne  power  with 
the  consent  of  a  council  or  senate  to  appoint  certain 
of  the  less  important  "state  officers,"  but  seldom  ap- 
points any  of  the  local  officers  with  the  exception 
of  the  police  commissioners  of  certain  of  the  larger 
cities.  The  movement  towards  the  appointment  by 
the  governor  of  city  police  commissioners,  which  is, 
although  an  exception  to  the  general  rule,  quite  an 
important  one,^  has  been  very  largely  due  to  the 
failure  of  the  local  police  to  enforce  prohibition  and 
other  liquor  laws.  In  addition  to  the  power  of 
original  appointment  in  the  cases  specified  in  the 
constitutional  statutes,  which  are  not  numerous,  the 
governor  has  also  the  power  to  fill  many  vacancies  un- 

'  E.  g.,  see  New  York  Law,  1892,  chapter  681,  section  6. 

'  Ibid,    sections  30  and  31. 

'See  r'airlie,  Municipal  Administration,  p.  133. 


I 


ORGANIZATION  OF  THE  EXECUTIVE.        loi 

til  the  expiration  of  the  term  or  the  next  election,  and 
also  the  power  to  fill  all  offices  by  appointment  for 
which  some  other  method  has  not  been  provided. 
The  power  of  appointment  possessed  by  the  governor 
is  generally  based  on  the  statutes,  and  therefore  may 
be  decreased  at  any  time  by  the  legislature,  but  in 
some  cases  it  is  based  on  the  constitution,^  when  of 
course  the  legislature  has  no  such  power. 

In  a  few  states  it  is  provided  that  the  terms  of  the 
officers  to  be  appointed  by  the  governor  and  of  those 
to  be  elected  by  the  people  shall  begin  and  expire  at 
the  same  time  that  the  term  of  the  governor  begins  and 
ends,  so  that  the  new  governor  may  fill  the  offices  to 
his  satisfaction  at  the  beginning  of  the  term,  and  so 
that  there  will  be  harmony  in  the  general  policy  be- 
tween the  governor  and  the  elected  officers,  who  it 
is  supposed  will  belong  to  the  same  party  as  the 
governor.^ 

Second.  Power  of  removal. — The  same  rule  is  true 
with  regard  to  the  power  of  removal  as  with  regard 
to  the  power  of  appointment — i.  e.,  the  grant  of  the 
executive  power  to  the  governor  does  not  give  him, 
in  and  of  itself,  any  power  of  removal.  Such  a  power 
must  be  conferred  by  expressed  provision  of  the  con- 
stitution or  statutes.  It  has  thus  been  held  that,  in 
the  absence  of  such  a  constitutional  or  statutory  pro- 
vision, the  governor  has  no  power  of  removal,  even  if 
the  term  of  the  officer  in  question  is  not  fixed  by  the 
legislature  and  will  therefore,  if  there  is  no  power  of 
removal,  be  a  term  for  life.'' 

'  Stimson,  op.  cit.,  section  202  B. 

'See  Kentucky  Const.,  sec.  91;  Nebraska  Const.,  art.   v.,  sec.    i;  Florida 
Constitution,  1886,  iv.,  sec.  20;  New  York  Constitution,  1894,  art.  v.,  sec.  i. 
*  See  Field  vs.  People,  3  Illinois,  pp.  79,  84. 


I02  CENTRAL  ADMINISTRATION. 

In  New  York,  where  the  administrative  powers  of 
the  governor  are  rather  greater  than  elsewhere,  it 
was  provided  by  the  first  constitution  that  the  gov- 
ernor had,  subject  to  the  necessity  of  obtaining  the 
consent  of  the  council  of  appointment,  the  power  to 
remove  almost  every  important  officer  in  the  state 
government  not  judicial  in  character  and  not  purely 
local.  This  power  resulted  from  the  power  of  ap- 
pointment which  was  granted  to  him  by  the  first  con- 
stitution, for  the  appointment  of  a  new  incumbent  to 
an  office  was  regarded  as  the  removal  of  the  existing 
incumbent.  It  is  said  that  use  was  made  of  this 
power  to  produce  "  an  entire  change  of  officers 
throughout  the  state  from  the  highest  to  the  low- 
est ;  at  any  rate  in  all  those  cases  where  the  im- 
mediate predecessors  of  the  council  had  made 
appointments."  ^  The  change  which  was  made  in 
the  powers  of  the  members  of  the  council  of  appoint- 
ment by  the  constitutional  amendment  of  1801,  had  a 
worse  effect,  if  possible,  upon  the  power  of  removal 
than  it  had  upon  the  power  of  appointment.  The 
powers  of  the  council  were  so  grossly  abused  that  they 
brought  about,  as  has  been  said,  the  abolition  of  the 
council  in  1821.  With  the  abolition  of  the  council  of 
appointment,  the  governor's  power  of  removal  was 
greatly  diminished.  At  first  the  governor  lost  prac- 
tically all  power  of  removal,  but  later  a  limited  power 
was  restored  to  him. 

At  the  present  time  it  may  be  said  that  the  power 
of  removal  of  the  ordinary  state  governor  is  as 
follows  : 

'  Hammond,  History  of  Political  Parties  in  the  State  of  New  York,  vol.  i 
p.  289. 


ORGANIZATION  OF  THE  EXECUTIVE.        103 

The  power  of  removal  is  confined,  as  a  general 
thing,  to  the  officers  whom  the  governor  appoints, 
though  in  some  instances,  as,  for  example,  in  New 
York,  the  governor  is  permitted  with  the  approval  of 
the  senate  to  remove  all  important  state  officers.^ 
Local  officers  are  seldom  removable  by  the  governor. 
The  state  of  New  York  is  the  most  important  excep- 
tion to  this  rule.  Here,  either  as  a  result  of  the  con- 
stitution or  of  the  statutes,  the  governor  has  quite 
a  large  power  of  removing  such  officers  as  the  sheriff, 
district  attorney,  and  mayors  of  important  cities.  In 
almost  all  cases,  however,  the  exercise  of  the  power 
of  removal  by  the  governor  is  conditioned  upon  ob- 
taining the  consent  of  the  council  or  senate,  and  upon 
the  existence  of  some  cause  which  is  usually  either 
malfeasance  in  office  or  neglect  of  duty,  but  in  a  few 
cases  may  consist  of  incompetency."  Where  removal 
may  be  made  for  cause  only,  in  accordance  with  the 
general  principles  of  the  administrative  law  of  the 
United  States,  the  person  to  be  removed  must  be 
given  a  hearing.^  Sometimes  pending  the  removal 
proceedings  the  governor  has  the  right  to  suspend 
the  officer  to  be  removed."*  As  in  the  case  of  the 
power  of  appointment,  the  power  of  removal  is  based 
sometimes  on  the  constitution,  indeed  generally  so ; 
but  also  in  some  cases  on  the  statutes,  when  the 
legislature  may  take  it  away. 

'  Public  Officers  Law,  sec.  24;  Stimson,  sec.  266. 

'  Stimson,  sec.  266. 

^  Dullam  vs.  Wilson,  53  Michigan,  392.  The  decision  of  the  governor  on  the 
merits  may  not,  however,  be  reviewed  by  the  courts,  even  in  a  collateral  proceed- 
ing to  which  the  governor  is  not  a  party,  certainly  where  all  the  statute  requires 
is  that  the  person  to  be  removed  is  to  be  given  a  hearing.  In  re  Guden,  171 
N.  Y.,  52g. 

*  See  Florida  Const.,  art.  4,  sec.  15. 


I04  CENTRAL  ADMINISTRATION. 

Third.  Power  of  direction. — The  governor's  powers 
of  direction  over  the  administrative  officers  are  very 
small  and  must  of  necessity  be  of  little  importance 
so  long  as  the  power  of  removal  is  as  weak  as  it  is. 
For  the  statutes  seldom  expressly  give  him  any 
power  of  direction.  The  only  general  exception  to 
this  rule  seems  to  be  in  the  case  of  the  attorney- 
general  who  is  regarded  as  the  legal  adviser  of  the 
governor  and  as  such  subject  to  his  direction.^ 

Fourth.  The  governor  s  power  over  administrative 
services. — In  addition  to  these  rather  limited  powers 
over  the  personnel  of  the  state  administration,  the 
governor  has  also  a  few  but  rather  unimportant  powers 
relative  to  the  administrative  services.  As  a  general 
thing  there  is  no  provision  in  the  state  constitutions 
similar  to  that  to  be  found  in  the  United  States  con- 
stitution, which  makes  it  the  duty  of  the  chief 
executive  to  see  that  the  laws  be  faithfully  executed. 
Indeed,  in  some  instances,  where  such  a  power  is 
recognized  in  the  constitution  of  the  state,  it  has  been 
held  by  the  state  courts  that  it  will  not  justify  the 
governor,  for  example,  in  employing  the  militia  of  the 
state  to  put  his  appointees  into  ofifices  to  which  he 
has  the  right  of  appointment.^  This  decision  is  not 
in  and  of  itself  important,  but  it  is  significant  as  show- 
ing, when  compared  with  the  decision  of  the  Supreme 
Court  of  the  United  States  in  the  Neagle  case,  to 
which  reference  has  already  been  made,  the  difference 
in  the  attitude  of  the  state  courts  from  that  of  the 
United  States  courts  in  construing  the  powers  of  the 
chief  executive  of  the  government. 

'  See,  for  example,  California  Political  Code,  sec.  380,  paragraphs  5,  6,  and  7  : 
Indiana  Revised  Statutes,  1S81,  5650. 

^ In  re  Fire,  etc..  Commissioners,  19  Colorado,  482,  503. 


ORG  AN IZ A  TION  OF  THE  EXECUTIVE.        105 

Furthermore,  the  state  legislatures,  different  from 
the  Congress  of  the  United  States,  have  not  vested  in 
the  chief  executives  of  the  state  governments  very 
many  specific  powers  with  regard  to  the  various 
administrative  services.  The  legislatures  have  not 
done  so  because  the  state  constitutions  very  com- 
monly provide  that  the  detailed  work  of  administra- 
tion which,  under  the  United  States  constitution  is 
under  the  supervision  of  the  President,  shall  in  the 
states  be  vested  in  a  series  of  officers  often  spoken  of 
as  administrative  officers,  who  are  elected  quite 
frequently  by  the  people  and  are  to  perform  their 
duties  very  largely  independently  of  any  gubernatorial 
supervision. 

Finally,  the  state  legislatures  have  not  in  many 
instances  granted  large  powers  of  ordinance  to  the 
governor.  There  are  cases  which  seem  to  hold  that 
the  legislature  may  vest  the  governor  with  a  power  of 
issuing  regulations,^  but  the  legislature  has  ordinarily 
preferred,  in  accordance  with  the  general  American 
system,  to  regulate  in  detail  all  matters  which  need 
regulation.  An  instance  of  a  legislative  delegation  of 
the  power  of  regulation  to  the  governor  may  be  found 
in  a  few  of  the  states  in  the  power  which  is  granted 
to  him  to  issue  civil-service  rules  providing  for  ap- 
pointments to  the  subordinate  positions  in  the  state 
civil  service. 

The  governor  has,  however,  in  some  states  com- 
paratively extended  financial  powers.  Thus  in  sev- 
eral of  the  states  ^  he  is  to  draw  up  estimates  of  the 

■  See  Martin  vs.  Witherspoon,  135  Massachusetts,  175,  which  holds  that  the 
governor  may  be  authorized  to  make  pilotage  regulations. 

'  Alabama,  Colorado,  Illinois,  Missouri,  Nebraska,  and  West  Virginia, 
Stimson,  sec.  280. 


io6  CENTRAL  ADMINISTRATION. 

amount  of  money  to  be  raised  by  taxation  for  the 
purposes  of  the  government.  In  several  states  also 
all  money  is  to  be  paid  out  of  the  treasury  on  his 
order/  and  finally  in  a  number  he  has  the  right  to 
examine  the  accounts  of  financial  officers  at  stated 
times  and  sometimes  unexpectedly.^ 

3.  General  position  of  the  governor. — It  will  be 
noticed  from  this  description  of  the  governor's 
powers  how  different  his  position  in  the  state  admin- 
istration is  from  that  of  the  President  in  the  national 
administration.  Originally  occupying  about  the  same 
relative  position,  the  governor  has  been  stripped  of 
his  administrative  powers  and  has  been  more  and 
more  confined  to  the  exercise  of  political  powers, 
while  the  President  has  been  orainincr  more  and  more 
administrative  power  until  at  the  present  time  he 
makes  or  unmakes  the  administration  of  the  United 
States.  One  of  the  reasons  for  this  difference  in  the 
development  of  the  two  offices  is  to  be  found  in  the 
fact  that  the  constitution  of  the  United  States  has 
practically  made  it  impossible  for  any  administrative 
officers  in  the  United  States  system  to  be  elected  by 
the  people  or  appointed  by  the  legislature,  in  that  it 
has  specifically  stated  that  officers  are  to  be  ap- 
pointed by  the  President  and  Senate,  by  the  President 
alone,  by  the  heads  of  departments,  or  by  the  courts. 
In  the  case  of  the  state  constitutions,  amendments 
have  been  so  easy,  as  compared  with  the  amendment 
of  the  United  States  constitution,  that  the  powers  of 
the  governor  have  been  changed  as  a  result  of  con- 

'  See  Code  of  Georgia,  1882,  76. 

'  See  Virginia  Code,  sec.  238  ;  Colorado  General  Statutes,  1883,  sec.  1361  ; 
Iowa,  McLane's  Annotated  Statutes,  1882,  sees.  759,  763  ;  Kansas,  Dassler's 
General  Statutes,  1901,  sec.  7259. 


ORGANIZATION  OF  THE  EXECUTIVE.        107 

stitutional  amendment.  Furthermore,  the  state  legis- 
lature, occupying  the  position  which  it  does  in  the 
state  government,  has  had  the  right  in  the  absence 
of  a  specific  restriction  in  the  state  constitution, 
which  is  hardly  ever  to  be  found,  to  provide  methods 
for  fillinof  offices  in  which  the  o-overnor  is  denied  all 
participation. 

What  has  been  said  with  regard  to  the  power  of 
appointment  may  practically  be  repeated  with  regard 
to  the  power  of  removal.  It  is  true,  of  course,  in  the 
case  of  the  United  States  government  that  Congress 
did  at  one  time  attempt  to  deprive  the  President  of 
what  had  been  regarded  as  the  constitutional  power 
of  removal,  but  it  soon  saw  the  error  of  its  ways  and 
returned  to  the  original  system.  Such  has  not  been 
the  history  of  the  legislatures  of  the  states  of  the 
United  States  which,  following  the  example  of  the 
state  constitutions,  have  deprived  the  governor  of 
whatever  power  of  removal  he  may  have  originally 
possessed,  with  as  little  compunction  as  they  have  de- 
prived him  of  the  power  of  appointment.  It  has 
been  impossible  for  the  governor  to  become  the  head 
of  the  state  administration,  because  the  people  of  the 
state  have  practically  decided  that  the  governor  shall 
be  in  the  main  a  political  officer.^ 

The  governor's  office  has  thus  been  deprived  of  all 
means  of  administrative  development.  The  governor 
is  now,  more  than  he  ever  was,  a  political  officer,  his 
political  powers  having  tended  to  increase.  This  is 
especially  true  of  the  veto  power,  which  now  extends 
so  frequently  to  items  of  bills  appropriating  money. 

'  For  a  good  comparison  of  the  positions  of  the  President  and  the  governor 
see  Field  vs.  People,  3  Illinois,  79. 


io8  CENTRAL  ADMINISTRATION. 

But,  because  the  governor  has  thus  been  confined  to 
the  exercise  of  pohtical  powers,  his  influence  upon  the 
welfare  of  the  state  must  not  be  underestimated.  He 
is  still  a  very  important  officer.  His  veto  power  gives 
him  a  vast  power  over  legislation,  while  the  little 
power  of  removal  which  he  possesses  often  enables 
him  to  punish  summarily  any  gross  misconduct  on 
the  part  of  administrative  officers,  both  those  of  the 
central  state  p^overnment  and  those  in  the  localities. 

4.  Remedies  against  the  action  of  the  governor. — 
What  has  been  said  with  regard  to  the  remedies 
against  the  action  of  the  President  may  be  repeated 
with  reofard  to  the  remedies  ag-ainst  the  action  of  the 
governor.  The  governor  is  held,  for  example,  not  to 
be  subject  to  the  process  of  the  courts,^  but  he  may  be 
personally  liable  after  the  expiration  of  his  term  of 
office  for  acts  done  in  office.^  The  state  courts  also 
are  almost  as  careful  not  to  come  into  personal  con- 
flict with  the  governor  as  the  United  States  courts  are 
not  to  come  into  personal  conflict  with  the  President. 
The  better  rule  is  that  they  will  not  attempt  to 
exercise  a  control  over  him  personally.^  The  only 
exception  to  this  rule  is  in  the  case  of  the  quo  war- 
ranto. There  are  several  cases  where  the  quo 
warranto  has  been  issued  to  the  governor."*  The 
courts  have,  however,  very  little  hesitation  about  de- 
claring an   act   of  the  governor,    in  which  it  would 

'  Hartranft's  Appeal,  85  Pa.  St.,  433. 

'  See  Druecker  vs.  Salomon,  21  Wisconsin,  621,  where  the  court  took  juris- 
diction of  a  case  against  an  ex-governor. 

^See  People  vs.  Morton,  156  N.  Y.,  136;  Dennett  Petitioner,  32  Maine,  508. 
In  both  these  cases  the  court  refused  to  issue  a  mandamus  to  a  board,  of  which 
the  governor  was  a  member. 

*See  the  case  of  Attorney-General  vs.  Barstow,  4  Wis.,  567;  Morris  vs. 
Bulkley,  61  Conn.,  287. 


ORGANIZATION  OF  THE  EXECUTIVE.        109 

appear  that  he  exercises  considerable  discretion,  null 

and  void.^ 

The  courts  will  not,  however,  interfere  with  acts 
of  the  governor  which  they  regard  as  political  in 
character.  Thus  they  have  held  that  the  governor  is 
the  judge  as  to  the  advisability  of  holding  an  extra 
session  of  the  legislature,  and  that  his  determination 
is  not  reviewable  by  the  courts.^  In  the  same  way 
they  have  held  that  where  the  constitution  vests  in 
the  governor  the  power  to  prorogue  the  legislature 
when  a  disagreement  exists  as  to  the  time  of  adjourn- 
ment, he  is  the  exclusive  judge  as  to  the  existence  of 
the  contingency  provided  for  by  the  constitution,  and 
his  decision  may  not  be  reviewed  by  the  courts.^ 

'See  People  vs.  Curtis,  50  N.  Y.,  321,  where  it  was  decided  that  a  warrant 
of  extradition,  made  by  the  governor  in  pursuance  of  an  unconstitutional  law, 
was  void;  People  vs.  Brady,  56  N.  Y.,  182,  where  the  court  went  back  of  a 
warrant  of  extradition  issued  by  the  governor,  and  decided  that  the  evidence  on 
which  the  warrant  was  issued  was  not  sufficient  to  justify  the  inference  that  a 
legal  crime  had  been  committed;  DuUam  vs.  Wilson,  53  Mich.,  392  ;  People 
vs.  Piatt,  50  Hun,  454,  where  the  court  decided  that  the  act  of  the  governor 
appointing  an  officer  was  void,  on  the  ground  that  the  person  appointed  was 
not  qualified  for  the  office. 

'  See  Farrelly  vs.  Cole,  60  Kan.,  356  ;  see  also  People  vs.  Rice,  65  Hun, 
N.  Y.,  236. 

*/«  re  The  Legislative  Adjournment^  18  R.  I.,  824. 


CHAPTER   IV. 

THE    SENATE    AS    AN    EXECUTIVE    COUNCIL. 

In  almost  every  one  of  the  American  colonies  there 
was  placed  by  the  side  of  the  governor  a  council,  the 
members  of  which  were  appointed  by  the  crown. 
The  consent  of  this  council  was  necessary  in  order 
that  certain  of  the  acts  of  the  governor  should  be 
valid.  In  addition  to  acting  as  a  council  of  advice  to 
the  governor  and  a  means  of  control  over  him,  the 
colonial  council  was  also  a  part  of  the  colonial  legisla- 
ture, and  in  some  instances  acted  as  a  court  of  appeals 
in  civil  cases.      It  occupied  this  position  in  New  York,-^ 

When  the  colonies  became  independent  states,  in 
several  of  them  this  institution  was  retained  and 
exists  at  the  present  time.  Thus  in  the  states  of 
Maine,  Massachusetts,  and  New  Hampshire,  we  find 
even  now  a  orovernor's  council,  whose  consent  is 
necessary  to  the  governor's  appointments.^  In  others 
the  council  as  such  has  disappeared  and  the  powers 
which  it  possessed  have  been  transferred  to  the 
upper  house  of  the  legislature.^  This  is  the  general 
rule  at  the  present  time  and  is  true  of  the  national 

'  See  Governor's  Commission  in  Documents  Relating  to  the  History  of  Nevt 
York,  iii.,  377. 
*  Stimson,  American  Statute  Law,  sec.  210  B. 
^ Ibid.,  sec.  210  C. 

ZIO 


SENA  TE  AN  EXECUTIVE  CO UNCIL.  1 1 1 

government  and  of  the  state  of  New  York.  The 
powers  which  these  councils,  or  senates  as  executive 
councils,  possess  at  the  present  time  are  somewhat 
different  in  the  national  and  state  governments. 

/. — hi  the  national  gov ern7nent. 

The  powers  of  the  United  States  Senate  as  an  ex- 
ecutive council  are  stated  in  the  constitution  to  be, 
first,  to  give  its  advice  and  consent  to  the  appoint- 
ment by  the  President  of  certain  classes  of  officers,^ 
and,  second,  to  prevent  the  making  by  the  President 
of  a  valid  treaty,  by  refusing  its  approval  thereto. 
Such  approval  must  by  the  constitution  be  made  by 
a  two-thirds  vote.~ 

These  powers  which  the  senate  possesses  over  the 
acts  of  the  President  must  not  be  classed  among  its 
legislative  powers,  for  though  the  senate  is  an  import- 
ant legislative  body  it  is  at  the  same  time  an  execu- 
tive council  and  the  only  executive  council  in  the 
national  government.  When  acting  as  an  executive 
council,  it  acts  separately  and  apart  from  the  other 
legislative  body  —  the  house  of  representatives. 
When  so  acting,  the  senate  is  said  to  be  in  executive 
session,  and  may  sit  at  a  time  when  the  house  of 
representatives  is  not  in  session,  which  may  not  be 
the  case  when  the  senate  is  acting  as  a  part  of  the 
Congress.^ 

'  Art.  ii.,  sec.  2,  par.  2. 

2  Ibid. 

^  See  as  to  the  distinction  between  both  the  United  States  Senate  and  the 
state  senates  as  executive  councils  and  as  parts  of  the  legislature,  State  vs. 
Knight,  63  Cal.  333  ;  Atty.-Gen.  vs.  Oakman,  126  Mich.  717  ;  Com.  vs.  Waller, 
145  Pa.  St.  235. 


112  CENTRAL  ADMINISTRATION. 

Further,  the  senate,  as  an  executive  council,  may  be 
distinguished  from  the  senate  as  a  part  of  the  Con- 
gress by  the  difference  in  procedure  which  is  followed 
in  the  two  cases.  When  the  senate  acts  as  an  execu- 
tive council  its  sessions  are,  as  a  rule,  secret,  while 
its  sessions  as  a  part  of  the  Congress  are  open  to 
the  public.  The  reason  for  the  adoption  of  secret 
sessions,  when  the  senate  is  acting  as  an  executive 
council,  is  to  be  found  in  the  delicate  character  of  the 
business  which  comes  before  it.  The  same  is  true  of 
the  state  senates  when  they  act  as  executive  councils. 

The  extent  of  the  power  which  the  senate,  as  an 
executive  council,  possesses  over  the  acts  of  the 
President  is  not  clearly  defined  in  the  constitution. 
The  power  of  the  senate  as  to  treaties  is,  of  course, 
absolute,  and  nothing  that  can  be  done  by  Congress 
can  change  or  in  any  way  affect  it.  The  same  is  true  as 
to  the  power  of  the  senate  to  refuse  its  advice  and 
consent  to  the  appointment  by  the  President  of  am- 
bassadors, other  public  ministers,  and  consuls,  and 
judges  of  the  supreme  court,  but  with  the  exception  of 
these  officers  the  power  of  the  senate  is  dependent 
on  the  action  of  Congress  ;  that  is,  Congress  is  per- 
mitted by  the  constitution  to  "  vest  the  appointment 
of  such  inferior  officers  as  they  may  think  proper  in 
the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments." 

The  power  of  Congress  thus  to  define  the  extent 
of  the  participation  of  the  senate  in  the  appointment 
of  officers  is  not,  however,  so  great  as  it  would  at  first 
sight  appear  to  be.  For  the  constitution  adds  to  the  list 
of  those  officers  who  are  to  be  appointed  with  the 
consent  of  the  senate  "all  other  officers  of  the  United 


SENATE  AN  EXECUTIVE  COUNCIL.  113 

States  whose  appointments  are  not  herein  otherwise 
provided  for  and  which  shall  be  established  by  law." 
It  therefore  necessarily  follows  that,  if  an  office  is 
established  by  a  law  which  says  nothing  as  to  the 
power  of  the  senate  to  confirm  appointments  to  it, 
the  confirmation  of  the  senate  will,  as  a  matter  of 
law,  be  necessary  to  the  validity  of  the  appointment.^ 
Of  course  Congress,  acting  with  the  consent  of  the 
senate,  may,  in  the  case  of  all  officers  not  specifically 
made  subject  to  the  power  of  the  senate,  provide  for 
a  presidential  appointment  or  an  appointment  by 
the  head  of  the  department.  As  a  matter  of  fact, 
however,  most  of  the  important  inferior  administrative 
offices,  both  at  Washington  and  through  the  country 
as  a  whole,  are  filled  by  and  with  the  advice  and  con- 
sent of  the  senate,  because  either  that  method  is  pro- 
vided by  law,  or  because  the  law  has  established 
the  office  without  stating  explicitly  that  it  is  to  be 
filled  by  the  appointment  either  of  the  President  alone 
or  of  the  head  of  a  department. 

The  practical  result  is  then  that  the  senate  as  an 
executive  council  has  actually  a  very  important  con- 
trol, the  extent  of  which  it  may  itself  very  largely 
determine,  over  two  of  the  most  important  powers  of 
the  President.  Further,  the  actual  way  in  which  this 
control  has  been  exercised,  and  is  now  being  exer- 
cised is  such  that  a  very  serious  modification  has 
practically  been  made  of  the  general  position  assigned 
by  our  constitutional  law  to  the  President.  Thus, 
although  in  theory  the  President  is  to  represent  the 
country  in  diplomatic  matters,  it  is  practically  impos- 
sible for  him  to  conclude,  in  many  instances,  a  treaty 

'  See  6  Opins.  Attorneys-General,  v.,  i. 


114  CENTRAL  ADMINISTRATION. 

with  a  foreign  country.  Treaty  after  treaty  negotia- 
ted by  the  President  has  failed  to  receive  the  confir 
mation  of  the  senate.  The  failure  has  of  course  in 
large  measure  been  due  to  the  extraordinary  majority 
of  two-thirds  required  for  approval  by  the  constitu- 
tion. If  the  constitution  were  amended  so  as  to  per- 
mit a  treaty  to  be  approved  by  a  majority,  the 
diplomatic  power  of  the  President  would  be  vastly 
increased. 

Again,  although  the  constitution  vests  the  power 
of  nomination  in  the  President,  the  practice  of  the 
senate,  which  has  come  to  be  known  as  "  senatorial 
courtesy,"  has  brought  it  about  that  the  senators  rep- 
resenting the  state  in  which  an  appointment  is  to  be 
made,  particularly  if  they  are  of  the  same  political 
party  as  the  President,  have  practically  the  power  of 
nomination.  Almost  all  that  the  President  can  do  is 
to  insist  that  a  certain  standard  of  excellence  accepta- 
ble to  himself  shall  be  maintained  by  the  senators 
concerned  in  the  nominations  for  office  which  they 
are  thus  practically  permitted  to  make.^  The  actual 
transfer  of  the  power  of  nomination  '-'  from  the  Presi- 
dent to  the  individual  senators  or  other  members  of 
Congress,  has  caused  modifications  to  be  made  in  the 
administrative  position  of  the  President  which  have 
two  most  important  effects  on  our  political  system. 
They  have,  in  the  first  place,  lessened  the  responsi- 
bility of  the  President  and  diminished  his  power  to 
conduct   the    administration    according  to    his  ideas 

'  See  Fairlie,  "  The  Administrative  Powers  of  the  President,"  Michigan  Law 
Review,  vol.  ii.,  p.  193. 

'  It  will  be  remembered  that  such  a  power  of  nomination  was  finally  recog- 
nized by  law  as  belonging  to  each  member  of  the  famous  New  York  council  of 
appointment,  supra  99. 


SENATE  AN  EXECUTIVE  COUNCIL.  115 

of  what  is  fit  and  proper.  They  have,  in  the  second 
place,  given  to  the  senate  a  position  in  the  govern- 
ment which  it  can  hardly  be  believed  was  intended 
by  the  framers  of  the  constitution,  or  is  thought  by 
most  persons  at  the  present  day  to  be  one  which  the 
senate  should  occupy. 

The  evils  due  to  this  exaggerated  control  of  the 
senate  over  the  President  have  been  aggravated  by 
the  fact  that  the  terms  of  most  of  the  officers  of  the 
United  States  have,  for  the  last  half  century  or  more, 
been  only  four  years.  If  their  terms  were  at  the 
pleasure  of  the  President,  the  power  of  the  President 
would  be  much  increased,  and  that  of  the  senate 
would  be  much  decreased,  for  the  President  would 
under  such  conditions  be  compelled  to  go  seldom,  as 
compared  with  present  conditions,  to  the  senate  to 
have  his  appointments  confirmed.  The  repeal  of  the 
present  term-of-office  acts,  which  could  be  done  by  an 
act  of  Congress  without  any  change  in  the  constitu- 
tion would  do  much  to  remedy  one  of  the  most  con- 
spicuous defects  in  the  present  national  administrative 
system.^ 

While  the  senate  has  been  exceedingly  jealous 
of  its  prerogative  so  far  as  concerns  the  appointment 
of  inferior  officers  whose  appointment  is  conditioned 
upon  its  affirmative  action,  it  has  fortunately  acted 
much  more  wisely  and  much  more  in  accord  with  the 
general  principles  underlying  our  national  administra- 
tive system,  where  the  appointment  of  heads  of  de- 
partments is  concerned.  The  senate  has  followed  the 
practice  of  according  to  the  President  almost  complete 
freedom  in  filling  these  positions,  confirming  almost 

'  Cf.  ibid. 


ii6  CENTRAL  ADMINISTRATION. 

as  a  matter  of  course  any  appointments  the  President 
may  make  for  positions  in  what  has  come  to  be  known 
as  his  cabinet.  Ahnost  the  only  case  in  our  history 
where  the  senate  has  attempted  to  exercise  a  control 
over  these  appointments  is  to  be  found  in  connection 
with  the  tenure-of-office  acts  passed  in  1867  as  a 
result  of  the  unfortunate  struggle  between  Congress 
and  President  Johnson. 

//. — In  the  state  government. 

While  the  United  States  Senate  has  a  control  over 
certain  of  both  the  political  and  administrative  acts  of 
the  President,  the  state  senate,  acting  as  an  executive 
council,  or  the  governor's  council,  which  is  elected  by 
the  legislature  in  Maine  ^  but  elsewhere  elected  by 
the  people,^  has  control  only  over  certain  administra- 
tive acts  of  the  governor.  Its  control  over  these 
administrative  acts  is,  however,  more  extended  than 
the  similar  control  of  the  United  States  Senate  over 
the  acts  of  the  President,  for  the  general  rule  of  the 
states  is  that  the  consent  of  the  executive  council 
(senate)  is  necessary  not  only  for  appointments  but 
also  for  removals.^ 

Furthermore  the  power  of  the  senate  in  the  state 
governments  is  absolutely  fixed  in  the  constitution. 
The  state  constitutions  do  not  leave  to  the  legisla- 
ture, as  it  has  been  shown  the  United  States  constitu- 
tion leaves  in  large  part  to  Congress,  the  determination 
as  to  the  extent  of  the  control  which  the  senate  shall 

'  Constitution,  art.  522. 

*  Stimson,  American  Statute  Law,  sec.  202  B. 

'For  New  York,  see  supra,  p.  103;  see  also  Maine  Constitution,  art.  ix.,  sec. 
6  ;  Stimson,  sec.  210. 


SENA  TE  AN  EXEC  UTI VE  CO  UNCIL.  1 1 7 

exercise  over  the  governor's  appointments.  As  a 
matter  of  fact  most  of  the  appointments  made  by  the 
governor  are,  in  accordance  with  the  provisions  of 
the  constitution,  to  be  made  by  and  with  the  advice 
and  consent  of  the  senate. 

The  attitude  of  the  state  senate  towards  the  o-ov- 
ernor  has  been  very  similar  to  that  of  the  United 
States  Senate  towards  the  President,  but  because  of 
the  totally  different  kind  of  administrative  system 
which  has  been  adopted  for  the  state,  we  find  no 
such  custom  as  was  seen  to  exist  in  the  United  States 
Senate  in  the  case  of  cabinet  appointments,  of  giving 
the  governor  free  hand  in  the  appointment  of  officers 
corresponding  to  the  cabinet  officers  of  the  United 
States  orovernment. 

o 

The  state  senate  not  only  exercises  a  wide  control 
over  the  governor's  appointments,  it  exercises  also 
almost  as  extensive  a  control  over  his  exercise  of 
such  power  of  removal  as  he  possesses.  Nothing  is 
more  common  in  the  state  than  to  see  the  senate 
reject  the  governor's  recommendations  either  for  ap- 
pointment or  removal,  for  no  other  reason,  apparently, 
than  that  they  do  not  appear  to  the  senate  to  be  con- 
ducive to  the  interests  of  the  political  party  in  control 
thereof.  This  immoderate  exercise  of  the  senate's 
power  of  control  over  the  governor  has  largely  been 
accountable  for  the  result  that  the  governor's  re- 
sponsibility for  the  state  administration  has  been  all 
but  destroyed. 

While  in  the  case  of  the  national  government  con- 
siderable amelioration  of  the  present  conditions,  it 
has  been  shown,  could  be  secured  by  the  passage  of 
acts  of  Congress,  in  the  state  governments,  owing  to 


ii8  CENTRAL  ADMINISTRATION. 

the  fact  that  the  relations  of  the  governor  and  the 
senate  are  fixed  in  the  constitution,  and  to  the  further 
fact  that  many  of  the  subordinate  officers  of  the  state 
government  are  provided  for  and  their  terms  fixed  in 
the  constitution,  no  hope  can  be  entertained  of  chang- 
ing for  the  better  the  relations  of  the  eovernor  and 
the  senate  except  through  constitutional  amendment. 


CHAPTER  V. 

METHODS     OF     ORGANIZING     THE     EXECUTIVE     DE- 
PARTMENTS. 

/ — Methods  of  distributing  business. 

No  matter  how  centralized  the  administrative  system 
may  be,  it  is  absolutely  necessary  in  a  state  of  any 
size  that  there  should  exist  departments  or  offices 
amonor  which  the  detailed  work  of  administration  shall 
be  distributed.  In  many  governments  where  the  ex- 
ecutive has  not  been  clearly  separated  from  the  legis- 
lature, there  must  also  be  officers  whose  duty  it  is 
either  to  assume  the  responsibility  to  the  legislature 
or  to  the  courts  for  the  acts  of  the  executive.  In 
such  governments  the  heads  of  these  departments 
combine  the  functions  both  of  administrative  and 
of  political  officers.  In  the  United  States,  however, 
where  the  executive  is  pretty  clearly  separated  from 
the  legislature,  we  have  no  need  of  such  political  offi- 
cers, and  have  assigned  to  the  different  departments 
among  which  administrative  business  is  distributed, 
officers  whose  duties  are  not  political  but  merely 
administrative.  In  those  countries  where  this  politi- 
cal and  administrative  business  is  combined,  it  is  the 
habit  to  denominate  the  persons  to  whom  these  two 
kinds  of  business  are  entrusted,  as  ministers.      In  the 

iig 


I20  CENTRAL  ADMINISTRATION. 

United  States,  however,  the  immediate  subordinates 
of  the  executive  have  to  be  content  with  the  more 
modest  title  of  heads  of  departments. 

It  has  been  shown  that  all  administration  may  be 
differentiated  into  five  well  defined  branches — namely, 
those  of  foreign,  military,  judicial,  financial,  and  inter- 
nal affairs.  All  the  different  administrative  matters 
requiring  attention  from  the  administration  will  fall 
under  one  of  these  five  branches.  It  has  come  to  be 
well  recognized  at  the  present  time  that  the  best 
arrangement  of  administrative  business  is  to  place 
some  one  authority  at  the  head  of  each  of  these 
branches,  and  where  it  is  found  by  experience  to 
be  necessary  to  make  a  further  specialization,  to  take 
out  of  one  of  the  five  departments  thus  formed  some 
particular  matter  or  matters  and  form  a  separate 
department  for  its  or  their  management. 

In  the  United  States  national  system  of  administra- 
tion, we  find  that  the  military  department  is  thus 
divided  into  two  departments,  —  one  of  which  has 
charge  of  the  army  and  is  known  as  the  War  De- 
partment ;  the  other  of  which  has  charge  of  naval 
affairs,  and  is  known  as  the  Navy  Department.^ 
Again  we  find  the  care  of  public  works  is  often  given 
to  a  separate  executive  department ;  often  also  the 
question  of  education  becomes  so  important  as  to  de- 

'  In  the  United  States,  naval  affairs  were  originally  in  charge  of  the  War 
Department  but  were  soon  put  in  the  hands  of  a  special  department  where  they 
have  ever  since  remained,  see  Guggenheimer  on  "  The  Development  of  Execu- 
tive Departments"  in  Jameson,  Essays  in  the  Constitutional  History  of  the 
United  States,  p.  179.  This  gives  a  brief  but  excellent  historical  sketch  of  the 
development  of  the  executive  departments  of  the  United  States  government.  A 
more  detailed  history  of  the  development  of  the  United  States  departments  will 
be  found  in  the  Report  of  the  Dockery  Commission  53d  Congress,  Second 
Session,  House  Report,  49,  1893. 


METHOD  OF  ORGANIZATION.  121 

mand  a  separate  authority  for  its  management.     The 
same  is  true  of  agriculture  and  commerce. 

In  all  these  cases  it  will  be  noticed  that  the  prin- 
ciple at  the  bottom  of  the  distribution  of  administra- 
tive business  among  the  various  executive  departments 
is  the  division  of  the  work  according  to  its  nature, 
and  to  us  of  the  present  age  any  other  method  of  dis- 
tribution seems  preposterous.  But  this  method  has 
not  always  been  followed.  In  most  of  the  European 
states,  all  administrative  matters  were  originally  at- 
tended to  by  one  organ  —  generally  a  board  or  coun- 
cil of  some  sort.  In  this  body  the  distribution  of 
business  was  made  according  to  geographical  lines 
rather  than  according  to  the  nature  of  the  business  to 
be  transacted.  Indeed  such  a  system  of  geographical 
division  was  in  force  in  England  during  our  colonial 
period.  The  secretariat  of  state  had  two  principal 
secretaries  of  state 

but  their  duties  were  determined  arbitrarily  and  geographically 
instead  of  rationally  and  scientifically.  One  secretary  had 
charge  of  what  was  called  the  northern  department  . 
and  the  other  of  what  was  called  the  southern  department,  which 
included  .  .  .  the  American  and  West  Indian  colonies 
.  .  .  The  secretary  of  state  for  the  southern  department  was 
the  secretary  of  state  for  home  and  imperial  affairs  and  in  part  for 
foreign  affairs,  and  the  secretary  for  the  northern  department,  the 
secretary  in  part  for  foreign  affairs.' 

Indeed  at  the  present  time  we  have  in  our  national 
system  of  administration  one  or  two  instances  of 
adherence  to  the  old  geographical  system  ;  thus  there 
is  in  the  War  Department  a  bureau  known  as  the 
Bureau  of  Insular  Affairs,  which  attends  to  the  affairs 
of  the  insular  possessions  of  the  United  States. 

'  Snow,   The  Administration  of  Dependencies,  p.  209. 


X22  CENTRAL  ADMINISTRATION. 

II. — Power  of  organization. 

An  important  question  connected  with  the  subject 
of  the  executive  departments  is  who  shall  organize 
them  ?  Shall  it  be  the  executive  or  the  legislative 
authority  ?  The  United  States  constitution  does  not 
contain  anything  very  explicit  upon  this  subject.  In- 
deed it  does  not  expressly  provide  for  the  organiza- 
tion of  executive  departments,  although  it  impliedly 
recognizes  their  existence  in  two  places.^  It  permits 
the  President  to  "  require  the  opinion  in  writing  of 
the  principal  officer  in  each  of  the  executive  depart- 
ments on  any  subject  relating  to  the  duties  of  their 
respective  offices,"  and  allows  Congress  to  vest  the 
power  of  appointing  inferior  officers  "  in  the  heads  of 
departments."  The  last  clause  referred  to  further- 
more speaks  of  "  offices  established  by  law."  We 
may  gather  from  these  clauses  that  the  constitu- 
tion intended  that  there  should  be  executive  depart- 
ments and  that  the  power  to  organize  these  executive 
departments  was  to  be  vested  in  Congress.  It  is 
not,  however,  absolutely  certain  that  the  constitution, 
as  it  has  been  interpreted,  deprives  the  executive  of 
all  power  to  establish  offices.  Indeed  it  has  some- 
times happened  that  the  President  has  appointed 
agents  or  commissioners  for  particular  purposes. 
Such  agents,  however,  must  be  regarded  as  his  mere 
personal  representatives.  It  is  very  doubtful  whether 
in  the  absence  of  congressional  authority  the  President 
could  appoint  an  agent  who  could  perform  an  act 
which  would  in  any  way  affect  the  rights  of  private 
individuals,  and  it  is  certainly  regarded,  even  by  the 

'Art.  ii.,  sec.  2,  paragraphs  i  and  2. 


METHOD  OF  ORGANIZATION.  123 

administration,  that  the  President  could  not  grant  to 
such  officers  any  compensation  where  no  provision 
for  it  had  been  made  by  act  of  Congress.^ 

It  has  also  been  held  by  the  attorney-general,  who 
would  probably  not  be  inclined  to  underrate  the 
power  of  the  President,  that  the  establishment,  in 
one  of  the  executive  departments,  provided  for  by 
statute,  of  a  bureau  for  which  no  provision  has  been 
made  by  a  statute,  is  improper.^  No  case  has  arisen 
of  an  attempt  upon  the  part  of  the  President  to 
establish  an  executive  department,  and  there  seems  to 
be  no  doubt  entertained  by  any  of  the  writers  on 
this  subject    as  to  the  impropriety  of  such  action.^ 

The  practice  of  Congress  furthermore  has  been  not 
only  to  establish  all  the  executive  departments  that 
have  been  established  in  the  history  of  the  govern- 
ment, but  also  to  regulate  in  considerable  detail  their 
internal  arrangements,  fixing,  for  example,  the  bureaus 
into  which  such  departments  shall  be  divided,  and 
determining  the  powers  and  duties  not  only  of  the 
heads  of  departments  but  also  of  the  heads  of  the 
bureaus  among  which  the  work  of  the  department  is 
distributed.'*  In  some  cases  it  is  true  Congress  will 
entrust  to  the  head  of  a  department  the  performance 
of  certain  duties  and  will  leave  to  him  the  organiza- 
tion of  the  force  which  it  is  necessary  that  he  shall 

'  See  4  Opinions  of  the  Attorneys-General,  p.  24S  ;  see  also  United  States  vs. 
Maurice,  2  Brockenbrough,  U.  S.,  96. 

'■'See  10,  Opins.  Attys.-Gen.,  11. 

^  See  Benton,  Thirty  Years'  View,  ii.,  678;  see  also  "^-^rrizw.  Adminis- 
trative Law,  sections  5S  and  59. 

*  It  is  probably  true,  however,  that,  unless  Congress  has  acted  with  regard  to 
the  divisions  into  which  the  bureaus  of  a  department  may  be  divided,  the  head 
of  the  department  has  large  discretion  in  the  organization  of  the  work  of  the 
bureau.     See  2  Comptrollers'  Decisions,  173. 


124  CENTRAL  ADMINISTRATION. 

provide  in  order  to  discharge  the  duties  thus  imposed 
upon  him.  As  a  general  thing,  however,  departments 
whose  organization  has  been  the  result  of  adminis- 
rative  action  are  later  regulated  by  some  statute, 
generally  an  appropriation  act,  which  gives  the 
sanction  of  law  to  the  organization  that  may  have 
been  provided.  In  such  a  case,  of  course,  the  power 
of  the  head  of  the  department  or  of  the  President 
to  arrange  the  department  is  limited  because  of  the 
fact  that  what  is  done  by  statute  may  not  be  changed 
by  administrative  action. 

In  the  separate  states,  there  are  seldom  to  be  found 
in  the  constitutions  express  provisions  as  to  the 
organizing  power,  but  in  accordance  with  the  general 
principle  that  the  powers  of  the  executive  are 
enumerated  while  the  legislature  possesses  all  powers 
which  have  not  been  granted  to  some  other  authority,' 
the  legfislature  under  such  conditions  has  the  or- 
ganizing  power.  In  some  instances  the  constitutions 
themselves  organize  the  executive  departments,  and 
in  rather  rare  instances  not  only  organize  the  depart- 
ments, but  expressly  forbid  the  legislature  to  estab- 
lish any  new  departments  or  offices.^  As  a  general 
thing,  however,  the  departments  or  offices  in  the  state 
government  are  organized  by  the  legislature. 

The  practice  of  the  state  legislature  is  quite 
different  from  that  of  Congress.  As  a  general  thing. 
Congress  attempts,  so  far  as  possible,  to  consolidate 
all  the  offices  and  bureaus  under  the  general  direction 
and  supervision  of  the  head  of  a  department  who  is 

'  Supra,  40. 

*  See,  for  example,  Constitution  of  Nebraska,  article  v.,  section  26,  inter- 
preted in  In  re  Railroad  Commissioners,  15  Nebraska,  679,  683. 


METHOD  OF  ORGANIZATION.  125 

usually,  at  the  same  time,  a  member  of  what  we  are 
accustomed  to  call  the  President's  cabinet.  In  this 
way  we  find  in  the  national  government  nine  well 
organized  executive  departments  divided  up  into 
bureaus  and  divisions,  and  very  seldom  any  office 
which  is  not  attached  to  some  one  of  the  departments.^ 
In  the  states,  however,  apparently  no  serious  attempt 
has  been  made  to  gather  together,  under  the  general 
direction  and  supervision  of  a  head  of  a  department, 
the  various  bureaus  and  offices,  each  of  which  has 
been  established  to  attend  to  some  detail  of  adminis- 
tration. But  while  the  state  legislatures  have  not 
attempted  to  follow  the  example  of  the  United  States 
government  in  systematizing  the  administrative 
system  of  the  state,  the  state  statutes  do  not  descend, 
as  a  rule,  into  the  same  detail  as  the  acts  of  Con- 
gress. They  often  provide  merely  for  a  certain 
bureau  or  office  or  department,  and  the  legislature 
each  year,  or  every  two  years,  grants  in  its  appropria- 
tion acts  a  sum  of  money  to  the  head  of  the  bureau, 
office,  or  department,  leaving  him  very  large  freedom 
in  its  distribution. 

These  methods  of  organizing  the  executive  depart- 
ments agree,  it  will  be  noticed,  in  according  to  the 
legislature  almost  complete  power  over  the  adminis- 
trative organization.  This  power,  as  a  matter  of 
fact,  the  legislature  is  continually  exercising.  It  is 
very  much  to  be  doubted  whether  such  a  method  of 
organizing  the  executive  departments  is  a  good  one. 
In  most  other  countries  the  rule  is  that,  while  the 
legislature  unquestionably  has  power  to  organize  the 

'  An  important  office  at  the  present  time,  which  is  not  so  attached,  is  the 
Civil  Service  Commibsion.     22  Opinions  of  the  Attorneys-General,  62. 


126  CENTRAL  ADMINISTRATION, 

departments,  as  a  matter  of  practical  policy  it  leaves 
the  matter  of  organization,  particularly  as  to  details, 
in  the  hands  of  the  executive,  and  confines  its  action 
to  exercising  a  control  over  the  amount  of  money 
which  the  executive  may  spend  upon  the  departments. 
Such  a  method  of  regulating  this  matter  would  seem 
to  be  the  better  one,  inasmuch  as  the  executive  is  in 
a  better  position  to  know  the  needs  of  the  adminis- 
tration than  is  the  legislature,  and  is  responsible  for 
the  actions  of  the  administration.  Further,  the  ex- 
ecutive can  act  more  quickly  than  can  the  legislature. 
The  control  which  the  legislature  has  over  the 
finances  is  sufficient  to  prevent  the  administration 
from  incurring  too  great  an  expense  in  any  change 
that  it  may  wish  to  make.  There  have  been  a  num- 
ber of  instances  in  the  history  of  the  United  States 
where  the  exercise  of  the  organizing  power  by  the 
executive  would  have  been  of  the  greatest  advantage 
to  the  administrative  system  generally.  A  marked 
instance  of  this  is  to  be  found  in  the  history  of  the 
War  Department.  As  the  result  of  the  statutory 
organization  of  the  department,  it  at  one  time  was  so 
organized,  with  military  officials  at  the  head  of  the 
various  bureaus,  that  it  was  altogether  too  much  ex- 
empted from  the  control  of  the  President.  Notwith- 
standing the  defects  in  the  organization  of  the 
department,  it  required  a  long  time  before  the  Presi- 
dent and  the  secretary  of  war  could  succeed  in 
inducinor  Congress  to  make  the  chana;es  in  the 
organization  necessary  to  bring  about  a  proper  rela- 
tion between  the  bureau  heads  and  the  secretary  of 
war  and  the  President.  It  is  questionable,  however, 
whether  under  our  constitution  as  it  now  stands  the 


METHOD  OF  ORGANIZATION.  127 

power  of  organizing  the  executive  departments  could 
be  vested  in  the  executive.  It  certainly  is  true  in 
the  case  of  the  states  that  the  exercise  of  any  such 
power  by  the  governor  would  be  impossible  so  long 
as  our  constitutions  remain  as  they  are.  It  is  doubt- 
ful whether  in  the  case  of  the  national  government, 
where  the  constitutional  provisions  with  regard  to  the 
executive  departments  are  not  so  explicit,  the  exer- 
cise of  such  a  power  by  the  President  would  not  be 
regarded  by  the  courts  as  the  exercise  of  legislative 
power. 

A  comparison  of  the  methods  adopted  by  the  na- 
tional government  and  by  the  states  with  regard  to 
this  matter  of  organizing  the  executive  departments 
will  be  profitable.  One  of  the  effects  of  the  adoption 
of  the  system  of  unrelated  and  uncorrelated  bureaus 
and  offices,  such  as  we  find  in  the  state  system,  is  to 
subject  the  administration  of  state  affairs  to  a  far  too 
extended  political  control.  For  if  a  head  of  a  bureau 
is  subject  to  no  administrative  superior,  as  is  the  case 
with  most  of  the  heads  of  the  state  bureaus,  he  can 
hardly  fail  to  be  regarded  as  a  political  officer  who 
should,  so  far  as  possible,  conform  in  political  opinions 
with  the  political  party  in  control  of  the  state  gov- 
ernment. The  result  is  that,  although  the  duties  of 
the  heads  of  many  of  these  bureaus  are  really  almost 
exclusively  administrative  in  character,  the  heads  are 
changed,  so  far  as  the  law  allows,  with  every  change 
in  administration. 

If,  on  the  other  hand,  these  bureaus  are  all  sub- 
jected to  the  control  and  direction  of  some  head  of 
department,  as  is  the  case  in  the  national  administra- 
tive system,  the  tendency  to  frequent  change  in  the 


128  CENTRAL  ADMINISTRATION: 

incumbency  is  very  much  diminished,  and  it  becomes 
possible  to  develop  the  idea  that  the  head  of  a  bureau 
who  has  satisfactorily  performed  his  administrative 
duties  should  occupy  a  more  or  less  permanent  posi- 
tion. We  can  hardly  expect  to  develop  an  adminis- 
trative system  in  our  state  governments  free  from  the 
control  of  politics,  so  long  as  it  remains  in  the  uncon- 
centrated  condition  in  which  we  find  it  at  present. 


CHAPTER  VI. 

TERM    AND    TENURE    OF    THE    HEADS  OF    DEPARTMENTS. 

The  relations  of  the  heads  of  departments  with  the 
chief  executive  authority  are  of  the  greatest  import- 
ance, for  on  their  nature  depends  whether  there  is 
to  be  a  harmonious  administration  followingr  out  some 
general  plan,  or  whether  the  head  of  each  department 
is  to  be  a  law  unto  himself  and  is  to  be  able  to  con- 
duct the  affairs  of  his  department  in  such  manner  as 
he  sees  fit,  regardless  of  the  needs  of  other  depart- 
ments and  of  the  wishes  of  the  chief  executive. 
These  relations  of  the  heads  of  departments  with 
the  chief  executive  are  governed  almost  entirely 
by  two  things,  viz.,  the  term  and  the  tenure  of  office 
of  the  heads  of  departments. 

The  constitution  of  the  United  States  and  the 
constitutions  of  the  states  differ  considerably  in  this 
respect.  The  former  instrument  gives  to  the  chief 
executive  the  power  to  appoint,  remove,  and  direct 
all  the  heads  of  departments.  The  states,  how- 
ever, have  pursued  a  different  plan.  In  most  of  the 
original  states  the  chief  executive  did  not  have  the 
absolute  power  of  appointing  the  heads  of  depart- 
ments. The  tendency  was  to  fill  these  offices  at  first 
by  appointment  by  the  legislature,  as  was  the  rule 
originally  in  some  of  the  states,  then  by  election  by 

9 

129 


13©  CENTRAL  ADMINISTRATION. 

the  people,  which  is  the  rule  at  present.  It  is  said^ 
that  at  the  present  time  "all  the  executive  officers 
are,  as  a  general  rule  in  all  the  states,  elected  by  the 
people  at  a  general  election."  There  are,  of  course, 
exceptions  to  this  rule.  Many  of  the  incumbents  of 
the  newer  state  offices  are  appointed  by  the  gov- 
ernor and  senate.  Further,  there  are  still  instances 
of  the  appointment  of  heads  of  departments  by  the 
legislature. 

As  far  as  the  continuance  of  the  term  of  office  is 
concerned,  the  methods  adopted  in  the  states  differ 
as  much  as  the  methods  of  filling  the  offices.  But  in 
most  cases  the  term  of  office  of  the  heads  of  depart- 
ments is  fixed  either  by  the  constitution  or  the  stat- 
utes at  a  certain  number  of  years.  The  term  is  not 
generally  the  same  for  all  offices,  nor  does  it  always 
coincide  with  that  of  the  governor.  The  result  is 
that  it  is  not  necessarily  the  case  that  all  the  officers 
who  are  to  conduct  the  state  government  belong  to 
the  same  political  party,  or  that  they  share  the  same 
views  as  to  the  way  in  which  the  state  administration 
shall  be  conducted.  Further,  the  governor  cannot 
usually  in  ca?.e  of  conflict  produce  a  uniformity  in 
views  by  the  removal  of  the  head  of  a  department.^ 

What  now  are  the  relations  existing  between  the 
chief  executive  authority  and  the  heads  of  depart- 
ments in  the  American  system  of  administration 
which  result  from  this  state  of  facts  ?  In  the  national 
administration,  the  heads  of  the  departments  are  com- 
pletely subordinate  to  and  dependent  upon  the  chief 
executive  authority  as  a  result  of  the  precariousness 

'  Stimson,  op.  cit.,  p.  42,  art,  20  B, 
*  Supra,  p.  102. 


TERM  AND  TENURE.  131 

of  their  tenure,  and  will  be  in  harmony  one  with  the 
other  and  with  the  President  on  account  of  the  fact 
that  they  have  been  chosen  by  him  to  fill  their  respec- 
tive positions  as  a  result  of  his  knowledge  of  their 
opinions.  We  find,  therefore,  in  the  national  admin- 
istration complete  guaranties  for  an  efficient  and 
harmonious  administration  under  the  direction  of  the 
President. 

In  the  states,  however,  the  case  is  quite  different. 
Each  head  of  a  department,  or  office,  has,  so  long  as 
he  is  not  corrupt,  the  right  to  conduct  the  affairs  of 
his  department  or  office  just  about  as  he  sees  fit ;  and 
is  practically  independent  of  the  governor,  who  has 
little  or  no  influence  over  affairs  of  administration. 
The  constitutions  of  some  of  the  states  have  been 
honest  enough  to  recognize  what  is  the  real  position 
of  the  governor  and  what  is  that  of  the  heads  of  the 
departments,  and  devote  an  article  to  the  consid- 
eration of  the  "  administrative  "  officers  of  the  state, 
among  whom  the  governor  is  not  included.  But 
whether  the  constitution  recognizes  this  or  not,  the 
fact  is  the  same,  viz.,  that  the  governor  is  not  the 
head  of  the  administration  in  the  states  of  the  Ameri- 
can Union.  American  state  administrative  law  has 
added  to  the  famous  trinity  of  Montesquieu  a  fourth 
department,  viz.,  the  administrative  department,  ^ 
which  is  almost  entirely  independent  of  the  chief 
executive,  and  which,  as  far  as  the  central  administra- 
tion is  concerned,  is  assigned  to  a  number  of  officers 
not  only  independent  of  the  governor  but  also  in- 
dependent of  each  other. 

'  See  Florida  Constitution,  1881,  art.  5,  sec.  17  ;   Const.  Ind.,  art,  vi,;   Ore- 
gon,  art.  viii.;  Wis.,  art.  vi. 


132  CENTRAL  ADMINISTRATION. 

The  independence  which  almost  every  head  of  de- 
partment in  the  American  state  administrative  sys- 
tem may  claim  under  the  law  has  resulted  in  their 
being  little  attempt  made  to  secure  uniformity  in  ad- 
ministrative action.  While  in  the  national  government 
every  President  tries  to  surround  himself  with  ad- 
visers who  have  the  same  general  views  as  to  the 
conduct  of  the  government,  and  calls  regular  meet- 
ings of  his  heads  of  departments,  popularly  termed 
cabinet  meetings,  where  these  heads  of  departments 
may  exchange  opinions  on  the  important  questions 
which  come  up  before  them  for  settlement,  in  the 
states  we  seldom  hear  of  any  such  thing  as  a  meeting 
of  the  heads  of  the  departments.^  Such  a  meeting 
would  be  of  little  use,  as  there  resides  nowhere  the 
power  to  compel  a  head  of  department  to  change  his 
opinions  or  his  policy  so  as  to  suit  that  of  the  gov- 
ernor or  that  of  his  colleagues.  In  a  word,  in  the 
state  administration  there  are  seldom  any  guaranties 
for  efficient  and  harmonious  action  on  account  of  the 
independent  position  of  the  heads  of  departments  not 
only  over  against  the  governor  but  also  over  against 
each  other.  This  is  not  merely  a  theoretical  ob- 
jection to  the  state  system  of  administration.  For 
the  jealousies  and  prejudices  of  the  various  heads  of 
departments  and  their  conflict  with  the  governor  do 
in  practice  not  infrequently  lead  to  an  absolute  ces- 
sation of  the  work  of  administration.  The  attempt 
has  been  made  in  some  of  the  states  to  provide  that 
the  governor  and  most  of  the  important  state  offi- 
cers shall  be  elected  at  the  same  time  and  serve  for 
the  same  terms   in  the  hope  that  harmony  between 

'  But  see  Florida  Const.,  art.  5.,  sec.  17,  and  Iowa  Code,  1888,  p.  32. 


TERM  AND  TENURE.  133 

them  will  be  secured  by  the  fact  that  they  all  belong 
to  the  same  political  party.  This  hope  is  not,  how- 
ever, always  realized. 

A  study  of  the  public  law  of  different  countries 
governing  the  relations  of  the  heads  of  departments 
with  the  chief  executive,  would  show  that  the  almost 
universal  rule  is  that  the  heads  of  departments  are  de- 
pendent upon  the  chief  executive.  The  only  country 
which  does  not  make  some  such  provision  in  its  pub- 
lic law  is  the  United  States.  Here,  by  the  system 
adopted  in  the  separate  states,  it  does  not  seem  to  be 
considered  necessary  to  have  an  administration  so 
formed  as  either  to  shut  out  the  possibility  of  conflict, 
or  to  settle  such  conflicts  as  may  arise.  The  experi- 
ence of  the  world  is  agrainst  the  administrative  ar- 
rangements  of  the  states  of  the  American  Union,  and 
our  own  experience  has  shown  us  that  such  an  ar- 
rangement as  we  have  leads  to  conflicts  which  not 
only  diminish  administrative  efficiency,  but  in  some 
cases  produce  a  cessation  of  effective  administrative 
work. 

The  only  thing  which  prevents  our  state  adminis- 
trative system  from  breaking  down  altogether  is  the 
control  which  the  political  party  exercises  over  both 
the  governor  and  the  state  heads  of  departments. 
But  this  is  not  always  effective,  because  the  governor 
and  all  the  heads  of  departments  do  not  always  be- 
long to  the  same  party,  and  factions  arise  within  the 
party  itself  which  lessen  its  power  of  control. 


CHAPTER  VII. 

POWERS    AND    DUTIES    OF    HEADS    OF    DEPARTMENTS. 

Whatever  may  be  the  subordination  of  the  heads 
of  departments  to  the  chief  executive  authority,  they 
still  have  a  series  of  duties  of  an  administrative  char- 
acter which  they  may  perform  largely  independently 
of  the  action  of  the  chief  executive,  in  so  far  as  they 
have  not  received  positive  directions  from  him. 
More  than  this  is  true  of  the  states  in  the  United 
States.  Here  the  heads  of  departments  often  have 
functions  to  discharo-e  with  which  the  chief  executive 
has  little,  if  anything,  to  do.  First  to  be  mentioned 
among  their  powers  are  those  that  affect  the  person- 
nel of  the  official  service. 

/. — The  power  of  appomtment. 

In  the  United  States  national  orovernment  the  con- 
stitution  provides  that  Congress  may  grant  to  the 
heads  of  departments  the  power  to  appoint  to  in- 
ferior offices.^  Numerous  laws  have  granted  to  the 
heads  of  departments  such  a  power  of  appointment, 
so  that  now  the  ereat  mass  of  the  officers  of  the 
United  States  government  are  appointed  by  them. 
Several  laws  have,   however,    limited   the   power  of 

'  Art.  ii.,  sec.  2,  par,  2. 
134 


POWERS  AND  DUTIES.  135 

appointment  of  the  heads  of  departments  by  author- 
izing the  President  to  issue  rules  regulating  the  mode 
of  appointment.  Notable  among  them  is  the  Civil 
Service  law  of  1883.  The  rules  passed  by  the  Presi- 
dent, limiting  the  power  of  appointment  by  the  heads 
of  departments,  would  appear,  if  reasonable,  to  be 
binding  upon  them.  ^  Most  of  the  important  sub- 
ordinates of  the  heads  of  departments  are,  however, 
appointed  by  the  President  or  the  President  and 
senate.^ 

In  the  states  the  heads  of  departments  also  very 
generally  have  the  power  to  appoint  their  subordi- 
nates.^ It  is  expressly  provided,  however,  by  law 
that  many  of  the  agents  of  the  state  government  in 
the  localities  shall  be  elected  by  the  people  of  such 
localities.  In  some  of  the  states  the  power  of  ap- 
pointment of  the  heads  of  departments  is  limited  in 
the  same  way  as  in  the  national  government*  It  has, 
however,  been  held  that  if  the  state  constitution 
vests  the  power  of  appointing  subordinate  officers  in 
a  state  officer,  that  power  may  not  be  limited  by  an 
act  of  the  legislature.^ 


//. — The  power  of  removal. 

In  the  national  government  it  was  early  laid  down 
by  the  courts  that  the  power  of  removal  was  incident 

'  Cf.  United  States  vs.  Perkins  ri6,  U.  S..  483. 

'See  United  States  Revised  Statutes, /aj-j«w. 

'Thus  in  New  York,  the  Public  Officers  law,  Laws  of  1892,  chap.  681,  sec. 
Q,  declares  that  all  subordinate  officers,  whose  appointment  is  not  otherwise 
provided  for  by  law,  shall  be  appointed  by  their  principal  officers. 

*  See  infra,  p.  268. 

*  People  -vs.  Angle,  109  N.  Y.,  564, 


136  CENTRAL  ADMINISTRATION. 

to  the  power  of  appointment.V  Therefore,  when  the 
heads  of  departments  have  the  appointing  power,  they 
have,  in  the  absence  of  express  statutory  provision  to 
the  contrary,  the  power  of  removal  also.  The  same 
rule  is  true  in  the  state  governments.^  In  not  a  few 
instances,  however,  especially  in  the  case  of  the  repre- 
sentatives of  the  central  state  government  in  localities, 
the  duration  of  the  office  is  fixed  by  statute,  and 
removal  may  be  made  only  for  cause,  and  then  by  the 
governor,  and  not  by  the  heads  of  departments.^ 

///. — The  power  of  direction  and  stipervision. 

In  the  United  States,  the  original  conception  of  the 
head  of  department  was  that  of  an  officer  stationed  at 
the  centre  of  the  government  who  might  have,  it  is 
true,  in  many  cases  the  power  of  appointment  and  re- 
moval, but  who  was  not  supposed  to  direct  the  actions 
of  the  subordinates  of  his  department.  This  concep- 
tion was  particularly  applicable  to  that  branch  of 
administration  which  has  been  designated  the  admin- 
istration of  internal  affairs.  In  this  branch  of 
administration  almost  everything  was  attended  to  by 
officers  either  elected  by  the  people  of  the  local  dis- 
tricts into  which  the  state  was  divided,  or  appointed 
by  the  central  authority  of  the  state  government  from 
among  the  inhabitants  of  such  district,  and  acting 
almost  entirely  independently  of  any  central  super- 
vision. The  need  of  central  instruction  and  super 
vision    was    not    felt,    because    the    statutes   of   the 

'  Ex  parte  Hennen,  13  Peters,  230. 

'  People  Ex  rel.  Sims  vs.   Fire  Commissioners,  73  N.  Y.,  437  ;  cf.  Mechem, 
La-iv  of  Offices,  sec.  445. 

^  E.  g.,  see  New  York  Laws,  1892,  chap.  681,  sec.  23. 


POWERS  AND  DUTIES.  137 

legislature  descended  into  the  most  minute  details  as 
to  the  duties  and  powers  of  the  officers.  The  con- 
ception of  a  hierarchy  of  subordinate  and  superior 
officers  was  very  dim  if  it  existed  at  all. 

The  position  originally  occupied  in  the  national 
administration  by  the  collectors  of  the  customs  is  a 
good  example  of  the  position  occupied  by  the  local 
representatives  of  the  governmental  departments  who 
occupied  the  most  dependent  position.  Though 
nominally  the  subordinates  of  the  secretary  of  the 
treasury,  the  law  never  recognized  that  they  were 
subject  to  his  instructions  and  directions,  nor  was  it 
the  practice  to  regulate  administrative  action  by  means 
of  such  instructions.^  No  one,  further,  thought  in  our 
early  history  of  appealing  from  the  decision  of  a 
collector  to  the  secretary  of  the  treasury. 

In  the  state  government  the  system  was  of  the 
same  character,  the  heads  of  department  occupying 
an  even  less  important  position  than  that  occupied  by 
the  heads  of  departments  in  the  national  government. 
Almost  all  administrative  matters  affecting  the  state 
as  a  whole  were  attended  to  by  officers  in  the  localities 
who  were  really  quite  independent,  after  they  had 
assumed  office,  of  all  central  instructions,  notwith- 
standing the  fact  that  the  most  important  of  them 
were  originally  appointed  by  the  central  government 
of  the  state.  It  was  not  the  habit  of  the  central 
state  government  to  send  to  these  officers  in  the 
localities  instructions  as  to  how  they  should  act  in 
the  execution  of  the  law,   whatever  may  have  been 

'  See  the  Report  of  the  Secretary  of  the  Treasury  on  the  Collection  of  Duties, 
1885,  p.  xxxvii.  ;  see  also  Eliot  vs.  Swartout,  10  Peters,  137  ;  Tracy  z/j.  Swart- 
out,   10  id.,  80. 


138  CENTRAL  ADMINISTRATION, 

the  actual  power  of  the  heads  of  departments.  The 
independence  of  the  local  officers  was  later  very  much 
increased,  because  of  the  fact  that  they  ceased  to  be 
the  appointees  of  the  central  state  government,  but 
were  elected  by  the  people  of  the  localities  over  which 
they  had  jurisdiction. 

This  theory  of  local  administrative  independence 
in  the  discharge  of  functions  of  government  affecting 
the  interests  of  the  state  as  a  whole  still  lies  at  the 
basis  of  our  system  of  state  administration.  Never- 
theless, there  is  a  tendency  in  certain  branches  of 
administration  towards  the  development,  in  the  hands 
of  the  state  heads  of  departments,  of  powers  of 
supervision,  direction,  and  control.  This  tendency  is 
particularly  marked  in  the  domains  of  education, 
public  charities,  and  public  health.  The  powers  of 
supervision  which  are  exercised  by  the  heads  of 
departments  over  the  local  representatives  of  the 
departments  may  be  classified  as  follows  : 

First. — A  power  of  general  regulation  as  to  the 
methods  to  be  followed  by  local  officers  is  sometimes 
accorded  to  a  state  head  of  department.  Thus,  in  a 
number  of  states  local  accounts  must  be  kept  in 
accordance  with  rules  and  regulations  prescribed  by 
the  chief  fiscal  officer  of  the  state.  The  state  of 
Ohio  has  probably  gone  as  far  as  any  state  in  this 
respect.  An  act  of  1902^  provides  for  "a  bureau  of 
inspection  and  supervision  of  public  officers  with 
the  auditor  of  state  ex  officio  at  its  head. 
The  auditor  shall  '  formulate,  prescribe,  and  instal 
a  system  of  accounting  and  reporting  that  shall  be 
uniform   for   every   public    office   and   every    public 

'  95  Ohio  Laws,  p.  5. 


POWERS  AND  DUTIES.  139 

account  of  the  same  class,'  and  shall  show  all  the 
details  of  all  the  transactions  consummated  in  the 
office.  .  .  .  Every  taxing  body  and  public  insti- 
tution of  the  state  is  required  to  report  to  the  state 
auditor  such  accounts  and  statistics  as  he  may  de- 
mand."^ Again,  a  similar  power  of  regulation  is  often 
given  to  the  state  board  of  charities.  New  York  has 
probably  gone  as  far  in  this  direction  as  any  state.^ 

Second. — It  is  sometimes  provided  that  action  taken 
by  the  local  representatives  of  the  state  administra- 
tion shall,  to  be  valid,  receive  the  approval  of  the 
head  of  a  state  department.  Thus  in  New  York,  the 
civil-service  rules  of  the  cities  must  be  approved  by 
the  state  civil-service  commission  before  they  may  go 
into  effect.^ 

Third. — The  power  is  sometimes  granted  to  a  state 
department  to  issue  orders  to  local  officers  to  do  that 
which  the  central  authority  regards  as  necessary  and 
which  the  local  authority  has  neglected  to  do.  Such 
a  power  is  particularly  marked  in  the  case  of  the  state 
boards  of  health.  Thus  even  in  Ohio,  whose  central 
state  administration  has  been,  and  is  now  from  many 
points  of  view,  less  powerful  than  is  the  central  ad- 
ministration of  other  states,  the  state  board  of  health 
has  under  the  law*  the  power  to  "alter  any  regula- 
tion made  by  local  boards  and,  in  case  of  emergency 
or  the  delinquency  of  local  officers,  it  takes  complete 
control  of  local   matters,    making   such   orders  as   it 

'  Orth,  "  The  Centralization  of  Administration  in  Ohio,"  Columbia  Univer- 
sity Studies  in  History,  Economics ,  and  Public  Law,  vol.  xvi.,  p.  472. 

'  See  Fairlie,  "  Centralization  of  Administration  in  New  York  State,"  ibid., 
vol  ix.,  p.  507. 

'  Laws  of  1899,  chap.  370,  sec.  10. 

*90  Ohio  Laws,  p.  87. 


I40  CENTRAL  ADMINISTRATION. 

deems  fit,  and  enforcing  the  regulations  established 
by  the  local  boards.  In  such  cases  all  the  local 
police  and  health  officers  must  enforce  the  orders 
of  the  state  board  under  pain  of  heavy  penalties."  ^ 

Fourth. — It  is  also  frequently  provided  that  the 
state  government  shall  aid  by  grants  of  money  the 
local  QTovernments  in  the  discharore  of  functions  of 
state  administration  imposed  by  law  upon  them.  But 
the  state  aid  shall  not  be  given  unless  the  local 
governments  maintain  a  certain  standard.  The  deter- 
mination of  the  question  whether  the  required 
standard  has  been  maintained  is  to  be  made  by  some 
central  state  officer.  This  method  of  securing  to  the 
state  administration  a  control  over  local  officers  is 
very  common  in  the  educational  administration,  and 
through  it  the  localities  have  been  forced  to  employ 
only  properly  certified  teachers,  to  keep  the  schools 
open  during  a  certain  number  of  weeks  each  year, 
and  to  adopt  a  prescribed  course  of  study.^ 

Fifth. — It  is  in  some  cases  provided  that  appeals 
from  decisions  of  local  authorities  may  be  made  to  the 
heads  of  state  departments.  This  is  more  commonly 
provided  in  the  educational  administration  than  else- 
where, and  is  particularly  marked  in  the  state  of  New 
York,  where  the  power  is  accorded  to  any  one 
aggrieved  of  appealing  from  the  decision  of  any 
school  authority  to  the  state  superintendent  of  public 
instruction.  The  decision  of  the  superintendent  is 
final.^     While   the    power    to    hear   such    appeals    is 

'  Orth,  op.  cit.,  p.  504. 

'  See  Webster,  "Recent  Centralizing  Tendencies  in  State  Educational  Admin- 
istration,"  Columbia  University  Studies,  etc.,  vol.  viii.,  p.  156. 

^  Fairlie,  "  The  Centralization  of  Administration  in  New  York  State,"  ibid,, 
Tol.  ix.,  p.  45I-. 


POWERS  AND  DUTIES.  141 

probably  greater  in  the  case  of  the  New  York  state 
superintendent  than  in  the  case  of  any  other  officer, 
this  method  of  control  is  not  unknown  in  other 
states.^ 

Sixth. — Finally,  in  a  great  many  instances  state  de- 
partments are  given  large  powers  of  investigation  and 
advice  although  they  may  have  no  powers  of  actual 
control.  This  is  a  characteristic  of  the  state  depart- 
ments in  Massachusetts.^  and  of  all  state  boards 
of  charities.^  Much  good  would  seem  to  have  been 
accomplished  by  the  state  departments  in  the  dis- 
semination of  information  as  to  conditions  existing 
in  localities  in  the  charities  administration,  in  se- 
curing the  reformation  by  the  localities  themselves 
of  these  conditions  where  they  were  evil,  and  the 
passage  of  laws  to  remedy  such  conditions  where 
the  remedy  could  not  be  expected  to  be  applied  by  the 
locality.  But  the  tendency  is  for  a  state  department, 
which  has  been  formed  merely  with  these  advisory 
functions,  to  develop  powers  of  control  of  one  of 
the  classes  to  which  attention  has  been  directed. 

The  tendency  towards  the  development  in  the 
heads  of  departments  of  powers  of  supervision, 
direction,  and  control  is  much  more  marked  in  the 
case  of  the  national  administration  than  in  that  of  the 
state  administration.  Indeed  it  may  be  said  that  at 
the  present  time  such  powers  are  practically  complete 
in  the  former  system.     The  result  of  this  development 

'  Webster,  op.  cit.,  p.  73  ;  Bowman,  "  The  Administration  of  Iowa,"  Colum- 
bia University  Studies,  etc.,  vol.  xviii.,  p.  55. 

'Whitten,  "Public  Administration  in  Massachusetts,"  ibid.,  vol.  viii.,  p. 
SgS,  passim. 

'  Barbour,  "  The  Value  of  State  Boards,"  Conference  of  Charities  and  Cor» 
rection,  1894,  p.  9. 


142  CENTRAL  ADMINISTRATION. 

has  been  the  recognition  of  an  official  hierarchy  in 
the  national  administration,  with  the  power  in  the 
heads  of  departments  to  reverse  or  modify,  on  appeal 
of  persons  interested,  the  decisions  of  subordinate 
federal  officers  and  to  direct  them  how  to  act.^  Here 
the  treasury  department  offers  a  good  example.  At 
the  present  time  the  collectors  of  the  customs  would 
hardly  think  of  attempting  to  apply  a  law  in  a 
doubtful  case  without  first  receiving  instructions  from 
the  secretary  of  the  treasury,'*^  and  the  law  makes  an 
appeal  from  the  collector  of  internal  revenue  to  the 
treasury  department  necessary  before  the  aggrieved 
party  has  any  standing  in  court.  Any  one  believing 
himself  aggrieved  by  the  decision  of  a  collector  of 
internal  revenue  must  exhaust  his  administrative 
remedy  before  he  may  resort  to  his  judicial  remedy.^ 
This  was  the  case  also  in  the  customs  administration 
until  the  passage  of  the  customs  administrative  law  of 
1890,  which  took  away  the  administrative  remedy 
of  appeal  to  the  secretary  of  the  treasury  and  pro- 
vided an  appeal  to  the  general  appraisers.''  The 
same  thing  is  true  in  many  cases  in  the  department  of 
the  interior.^  Finally,  it  has  been  held  that  the  head 
of  a  department  may  change  the  erroneous  decision 
of  a  subordinate,^  and  that  any  person  aggrieved  by 
the  refusal  of  a  subordinate  to  obey  the  order  of  the 

'  See,  for  example,  United  States  Revised  Statutes,  sec.  251;  Butterworth 
vs.  United  States,  112  U.  S.,  50. 

«C/.  U.  S.  R.  S.,  sec.  2652. 

3U.  S.  R.  S.,  sec.  3226. 

*See  Goss,  "  History  of  Tariff  Administration  in  the  United  States,"  Column 
bia  University  Studies,  etc.,  vol.  i.,  p.  155. 

*U.  S.  R.  S.,  sec.  2273. 

•United  States  vs.  Cobb,  11  Federal  Reporter,  76  ;  see  Wyman,  Admini*- 
trative  Law,  p.  330  et  seq. 


POWERS  AND  DUTIES.  143 

head  of  department  may  obtain  from  the  proper 
court  a  mandamus  to  force  the  subordinate  to  obey 
such  order/ 

IV.  —  The  ordinance  power. 

What  was  said  as  to  the  ordinance  power  of  the 
President  and  governor  may  be  repeated  with  sUght 
modifications  here.  Notice,  however,  must  be  called 
to  the  rule  that  the  heads  of  departments  can  never 
be  regarded  as  possessing  any  ordinance  power  not 
derived  from  their  power  of  direction,  except  such 
as  has  been  delegated  to  them  by  the  legislature.  In 
case  a  head  of  department  possesses  a  power  of  direc- 
tion it  would  seem  that  he  may,  as  a  result  of  its 
exercise,  issue  regulations  with  regard  to  the  manner 
of  carrying  on  the  business  of  his  office,  which  regula- 
tions will  be  binding,  not  only  upon  his  subordinates 
acting  in  their  official  capacity,^  but  as  well  upon  them 
regarded  as  mere  citizens  doing  business  with  the  de- 
partment, and  also  on  unofficial  citizens  carrying  on 
such  business.  Indeed  the  Supreme  Court  of  the 
United  States  has  recognized  the  binding  character 
of  departmental  usage,  saying  :  "  Usages  have  been 
established  in  each  department  of  the  government 
which  have  become  a  kind  of  common  law,  and  regu- 
late the  rights  and  duties  of  those  who  act  within 
their  respective  limits."^  But  while  the  courts  will 
uphold  all  reasonable  regulations  of  this  character,  it 
has  been  held  that  regulations  which  are  unjust  will 

'Miller  vs.  Black,  128  U.  S.,  50. 

'  21  Opinions  of  Attorneys-General,  318  ;  see  also  Wyman,  Administrative 
Law,  p.  304. 

3  United  States  vs.  McDaniel,  7  Peters,  i,  14.  In  the  same  case  the  court 
lays  weight  upon  the  long  continuance  of  the  usage  of  the  department ;  see  also 
Merritt  vs.  Cameron,  137  U.  S.,  542. 


144  CENTRAL  ADMINISTRATION. 

not  be  enforced  by  the  courts,  which  will  interfere  to 
protect  even  officers  against  unjust  regulations.^ 

The  difference  in  the  relations  of  the  chief  execu- 
tive and  the  heads  of  departments  and  their  local 
agents,  which  has  been  shown  to  exist  in  the  national 
and  the  state  administrative  systems,  brings  it  about 
that  the  ordinance  power  of  the  head  of  a  state  de- 
partment is  quite  different  from  that  of  the  head  of  a 
department  in  the  national  administration.  Thus  it 
is  a  principle  of  the  national  administration  that  the 
act  of  a  head  of  department  is  the  act  of  the  Presi- 
dent.~  In  the  states,  however,  a  regulation  of  a  head 
of  department  is  not  regarded  as  the  act  of  the  gov- 
ernor; indeed,  it  is  quite  possible  that  a  state  head  of 
department  may  issue  a  regulation  contrary  to  the  wish 
of  the  governor.  Again,  the  fact  that  the  power  of 
direction  of  the  head  of  a  state  department  is  so  small 
as  compared  with  that  of  the  head  of  a  national  de- 
partment, brings  it  about  that  the  head  of  a  state 
department  must  look  more  frequently  than  the  head 
of  a  national  department  to  the  law  for  his  authority 
to  issue  regulations.  Finally,  the  fact  that  the  laws 
of  the  states  descend  into  greater  detail  as  to  admin- 
istrative matters  than  do  the  laws  of  Congress,  brings 
it  about  that  there  is  less  need  of  administrative  regu- 
lation in  the  state  than  in  the  national  system.  While 
theoretically  the  same  general  principles  may  apply  to 
the  two  systems,  the  centralized  character  of  the  one 
and  the  decentralized  character  of  the  other  make  the 
actual  conditions  quite  different. 

'  United  States  vs.  Cadwalader  ;  Gilpin,  563,  577  ;   United  States  vs.  Mann, 
2  Brock.,  II. 

*  See,  e.  g.,  Wilcox  vs.  Jackson,  13  Peters,  498  ;  see  also  supra,  90. 


riB 


POWERS  AND  DUTIES.  145 

Where  the  power  of  regulation  has  been  given  to 
a  head  of  department,  nice  questions  sometimes  arise 
as  to  the  extent  and  character  of  the  power  granted. 
Thus,  it  has  been  held  that  a  power  of  regulation  is 
distinctively  a  legislative  one  and  must  be  distin- 
guished from  the  administrative  power  of  direction. 
The  courts  do  not  permit  a  head  of  department  pos- 
sessing a  power  of  regulation  to  dispense  from  the 
regulation  once  issued,  by  ordering  a  subordinate  not 
to  enforce  it,  where  such  order  will  result  in  a  viola- 
tion of  the  right  of  a  private  individual ' ;  nor  will  a 
change  in  departmental  usage  be  permitted  to  have  a 
retrospective  effect  where  individual  rights  would  be 
violated  thereby.^  But  where  such  dispensation  from 
the  operation  of  the  regulation  does  not  interfere  with 
the  rights  of  private  persons,  it  would  seem  to  be 
proper.^  On  the  other  hand,  it  has  been  held  that 
where  the  legislature  has  granted  an  individual  a 
right,  dependent  for  its  complete  enjoyment  upon  the 
passage  of  regulations  by  the  head  of  department, 
such  right  may  be  made  of  no  avail  by  the  refusal  or 
neglect  of  the  head  of  department  to  issue  the  neces- 
sary regulations.^ 

V. — Special  acts  of  individual  applicatio7i. 

In  addition  to  these  general  acts,  the  heads  of  de- 
partments must,  in  order  to  discharge  the  functions 
given   to   them,   perform   many   special   acts.     They 

'  Campbell  vs.  United  States,  107  U.  S.,  407. 

'  United  States  vs.  McDaniel,  7  Peters,  i  ;  see  also  United  States  vs.  Hill. 
120  U.  S.,  169. 

*  Bubbs's  case,  4  Comptroller's  Decisions,  40  ;  Orne  vs.  Barslow,i75  Mass 

193. 

*  Dunlap  vs.  United  States,  173  U.  S.,  65. 


146  CENTRAL  ADMINISTRATION. 

have  to  make  most  of  the  contracts  which  are  made 
by  the  government ;  they  must  issue  orders  affect- 
ing only  one  case ;  they  must  make  decisions,  either 
of  their  own  motion  or  on  the  appeal  of  interested 
parties.  The  position  of  the  head  of  department  is 
in  this  respect  essentially  the  same  in  the  national 
and  the  state  trovernments. 

The  only  great  difference  between  the  position  of 
the  heads  of  departments  in  the  national  government 
and  that  of  the  heads  of  departments  in  the  state 
governments  is  that,  inasmuch  as  the  former  have 
universally  a  power  of  direction  over  the  subordinates 
of  the  departments,  appeal  maybe  taken  to  the  heads 
of  departments  from  the  decisions  of  subordinates, 
even  where  there  is  no  provision  by  law  for  such  an 
appeal.  For  as  the  Supreme  Court  has  said  :  "  The 
official  duty  of  direction  and  supervision  .  .  .  im- 
plies a  correlative  right  of  appeal  ...  in  every 
case  of  complaint,  although  no  such  appeal  is  ex- 
pressly given."  ^  Furthermore,  such  appeals  are  often 
expressly  provided  by  statute  of  Congress. 

In  the  states,  however,  where  the  head  of  depart- 
ment does  not  usually  have  the  power  of  direction  ^ 
there  is  no  general  right  of  appeal  from  the  de- 
cisions of  subordinates  to  superiors.  There  is  no 
objection,  however,  to  the  grant  to  the  individual  by 
statute  of  this  right  of  appeal,  and,  as  has  been  shown, 
it  is  sometimes  granted.^ 

In  the  case  of  these  appeals  It  is  often  provided  by 
statute  that  a  person  deeming  himself  aggrieved  by 
the  decision  of  an  administrative  authority  must  ap- 

•  Buttervvorth  vs.  United  States,  II2  U.  S. ,  50,  57 ;  see  also  Bell  vs.  Hearne, 
19  Howard,  252.  *  Supra,  p.  137.  '  Supra,  p.  140. 


mm 


POWERS  AND  DUTIES.  147 

peal  to  the  superior  of  such  authority  and  obtain  an 
unfavorable  decision  on  such  appeal  before  he  has 
any  standing  in  the  courts  to  ask  for  a  judicial  re- 
vision of  the  decision  complained  of.^  In  other  cases 
it  is  provided  that  if  an  individual  chooses  the  remedy 
by  administrative  appeal,  he  is  excluded  from  resort- 
ing to  the  courts  in  case  he  is  dissatisfied  with  the 
decision  of  the  head  of  department.  This  rule  is,  how- 
ever, rarely  adopted,  and  only  where  the  statute  clearly 
makes  the  decision  of  the  head  of  department  final.^ 

Outside  of  orders  to  inferiors  and  appeals  from  de- 
cisions of  inferiors,  the  powers  of  heads  of  depart- 
ments in  the  national  and  state  governments  are, 
from  the  point  of  view  of  their  special  acts  of  indi- 
vidual application,  about  the  same.  In  the  exercise 
of  these  powers  they  are  often  called  upon  to  make 
decisions.  The  decisions  which  they  thus  make  may 
be  said  to  be  of  two  kinds.  In  the  first  place,  they 
often  have  the  right  to  make  decisions  of  a  legal 
character.  As  a  general  thing  these  decisions  may 
be  reviewed  by  the  proper  courts.  The  courts  may 
practically  always  review  their  decisions  on  the  ques- 
tion of  their  jurisdiction.  This  is  so  even  where  the 
law  would  seem  to  make  their  decisions  final.  Thus, 
where  a  law  gives  to  the  head  of  a  department  the 
final  decision  as  to  the  deportation  of  an  alien,  inas- 
much as  jurisdiction  exists  only  in  the  case  of  aliens, 
the  decision  of  the  head  of  department  as  to  alienage 
in    a  particular    case    is    subject    to    review   by  the 

'  See,  e.  g.,  Nichols  vs.  United  States,  7  Wallace,  122  ;  Cheatham  vs.  United 
States,  92  U.  S.,  85  ;   United  States  vs.  Sing  Tuck,  194.  U.  S.,  161. 

'  See,  e.g.,  the  decisions  in  New  York  on  the  power  of  the  Superintendent  of 
Public  Instruction  to  entertain  appeals  ;  People  vs.  Collins,  34  Howard's  Prac- 
tice, 336  ;  People  vs.  Draper,  63  Hun,  389  ;  People  vs.  Eckler,  19  Hun,  609  ; 
see  also  Fairlie.  The  Centralization  of  Administration  in  New  York  State,  p.  43. 


148  CENTRAL  ADMINISTRATION. 

courts.^  But  in  these  cases  where  the  decisions  of 
the  heads  of  departments  are  on  questions  of  law,  the 
lesfislature  sometimes  make  such  decisions  final,  and 
there  is  no  constitutional  objection  to  such  action  on 
its  part.  Thus  Congress  may  provide  that  the  de- 
cision of  the  secretary  of  the  treasury  as  to  the  amount 
of  duty  to  be  collected  on  an  article  imported  into 
the  United  States  shall  be  final.^ 

The  second  class  of  decisions  made  by  heads  of 
departments  are  as  to  facts  rather  than  law.  As  a 
general  thing  such  decisions  are,  in  the  absence  of 
a  provision  of  statute  to  the  contrary,  final.  Thus 
where  a  state  board  of  dental  examiners  are  author- 
ized to  license  any  regular  graduate  of  a  reputable 
dental  college,  the  refusal  of  such  board  to  issue  such 
a  license  is  final  and  may  not  be  reviewed  even  in  a 
direct  proceeding  by  mandamus.^  This  rule  is  laid 
down  on  the  theory  that  the  determination  of  a  head 
of  department  is  made  in  the  exercise  of  his  official 
discretion,  and  that  his  discretion  is  not,  in  the  ab- 
sence of  statute  to  that  effect,  to  be  reviewed  by  the 
court."*  But  the  legislature  may  subject  the  discre- 
tion of  the  head  of  a  department  to  such  a  control. 
Thus  a  law  is  constitutional  which  permits  an  appeal 
to  a  court  from  the  decision  of  the  commissioner  of 
patents  refusing  to  issue  a  patent.^ 

'  Gonzales  vs.  Williams,  192  U.  S.,  i  ;  see  also  In  re  Fassett,  142  U.  S., 
479;  Miller  z/j.  Horton,  152  Massachusetts,  540. 

'  Gary  vs.  Gurtis,  3  Howard,  236  ;  see  also  Bates  &  Guild  Go.  vs.  Payne, 
194  U.  S.,  106  ;   Public  Glearing  House  vs.  Coyne,  194  U.  S.,  497. 

'  People  vs.  Dental  Examiners,  no  Illinois,  180;  see  also  United  States  vs. 
Commissioner,  5  Wallace,  563  ;  Litchfield  vs.  The  Register,  etc.,  9  Wallace, 
575  ;  Nishimura  Ekiu  vs.  United  States,  142  U.  S.,  651. 

*  See  Bates  &  Guild  Co.  vs.  Payne,  194  U.  S.,  106. 

'  United  States  vs.  Duell,  172  U.  S.,  576. 


POWERS  AND  DUTIES.  149 

VL  — Remedies. 

Different  from  the  chief  executive  and  the  gov- 
ernor, the  heads  of  departments,  as  any  administra- 
tive ofificers,  are  subject  to  the  control  of  the  courts. 
Unless  their  action  has  been  made  final  by  the  con- 
stitution or  a  statute,  which  is  not  usually  the  case, 
all  the  acts  of  the  heads  of  departments  in  both  the 
federal  and  the  state  governments  may  in  one  way  or 
another  be  reviewed  by  the  judicial  authorities,  which 
may  on  such  review  oblige  the  heads  of  departments 
to  keep  within  the  law.  There  is  generally,  however, 
no  direct  remedy  against  their  general  acts.  This 
rule  is  due,  not  to  the  exalted  position  of  heads  of 
departments,  but  merely  to  the  application  to  them  of 
the  general  rules  of  law  relative  to  the  control  of  the 
courts  over  administrative  officers.^  But  if  general 
acts  of  a  head  of  a  department  come  up  before  the 
courts  collaterally,  they  may  be  declared  void  as  done 
in  excess  of  the  power  of  the  head  of  department.^ 

In  the  case  of  the  special  acts  of  individual  applica- 
tion, however,  the  remedies  are  much  wider.  Thus 
there  is  often  possible  an  appeal  of  some  sort  to  the 
courts  to  overrule  or  modify  the  act  complained  of  or 
to  prevent  its  enforcement,  or,  in  case  the  head  of  a 
department  illegally  refuses  to  act,  to  force  his  ac- 
tion ;  while  the  courts  often  have  the  power,  in  case 
a  special  act  of  a  head  of  a  department  comes  up 
before  them  in  a  collateral  proceeding,  to  declare  it 
invalid.' 

'  See  infra,  p.  329.  "^  Supra,  p.  145. 

"^  Infra,  p.  432  ;   see  American  School  of  Magnetic  Healing  vs.  McAnnuky. 
187  U.  S.,  94. 


CHAPTER  VIII. 

ORGANIZATION    OF    THE    EXECUTIVE    DEPARTMENTS. 

/.  — National  government. 

In  the  national  government  there  are  nine  well 
organized  departments.  Of  these,  seven,  namely,  the 
departments  of  State,  War,  the  Navy,  the  Treasury, 
the  Interior,  Agriculture,  and  the  recently  established 
Department  of  Commerce  and  Labor,  are  presided 
over  by  a  secretary.  The  Department  of  Justice, 
which  has  as  its  head  the  attorney-general,  is  really 
hardly  an  executive  department.  Its  most  important 
business  is  to  act  as  legal  counsel  to  the  President 
and  the  other  departments.  Its  only  really  executive 
business  is  to  superintend  the  United  States  prisons 
and  to  exercise  a  control  over  the  marshals  of  the 
United  States  and  the  United  States  district  attor- 
neys. The  Post-office  has  as  its  head  the  postmaster- 
general.  The  heads  of  these  nine  departments,  in 
addition  to  carrying  on  the  work  of  the  special 
departments  which  may  be  assigned  to  them,  com- 
prise what  is  commonly  known  as  the  Presidents 
Cabinet.  This  body  has,  however,  no  legal  standing, 
and  membership  in  it,  although  usually  comprising 
the  officers  mentioned,  is  entirely  dependent  upon  the 
wishes  of  the  President.     There  is  no  department  of 

150 


EXECUTIVE  DEPARTMENTS.  151 

public  works  in  the  national  administrative  system. 
Public  works  are  attended  to  by  the  War  Depart- 
ment whether  those  works  be  of  a  military  character 
or  not. 

The  functions  of  the  departments  are,  in  most  cases^ 
easily  discerned  from  the  name  of  the  department, 
though  each  one  may  attend  to  matters  not  logically 
within  its  sphere.  Thus  the  Treasury  Department 
attends  to  all  financial  matters  except  postal  and 
public-land  matters,  in  so  far  as  these  services  may 
be  regarded  as  having  a  financial  character,  because  of 
the  fact  that  they  constitute  sources  of  public  revenue. 
The  only  departments  whose  names  are  at  all  likely 
to  mislead  one  as  to  the  functions  that  they  discharge 
are  the  departments  of  State,  of  the  Interior,  and  of 
Commerce  and  Labor.  The  main  business  of  the  State 
Department  is  the  management  of  the  foreign  rela- 
tions of  the  country.  Originally  its  name  was  the 
Department  of  Foreign  Affairs,  but  very  soon  after 
the  foundation  of  the  national  administrative  system 
it  was  thought  best  to  transfer  to  the  department 
other  matters  such  as  the  management  of  public 
lands,  the  issue  of  proclamations,  and  the  preserva- 
tion of  archives,  and  to  change  the  name  of  the  de- 
partment from  that  of  the  Department  of  Foreign 
Affairs  to  that  of  the  Department  of  State.  The 
main  duties  of  the  Department  of  State  are,  how- 
ever, still  the  management  of  the  foreign  relations 
and  the  supervision  of  the  diplomatic  and  consular 
services. 

The  Department  of  the  Interior  was  formed  about 
the  middle  of  the  nineteenth  century  to  take  over  the 
administration  of  certain  matters  which,  in  the  course 


152  CENTRAL  ADMINISTRATION. 

of  time,  had  demanded  attention  and  which  had  been 
assigned  to  one  or  more  of  the  existing  departments. 
Thus  the  management  of  the  Indians  had  been  in 
the  War  Department,  pensions  to  United  States  sol- 
diers had  been  attended  to  by  the  departments  of 
War  and  of  the  Treasury,  and  the  management  of 
the  pubHc  lands  was  also  vested  in  the  Treasury. 
The  Department  of  the  Interior  was  formed  to  re- 
lieve these  departments,  and  to  it  were  transferred 
those  bureaus  which  did  not  strictly  belong  to  the 
departments  to  which  they  were  assigned.  An  idea 
of  the  functions  of  the  Department  of  the  Interior 
may  be  obtained  from  an  enumeration  of  the  various 
bureaus  under  the  supervision  of  the  Secretary  of  the 
Interior.  These  are  :  the  Indian  Bureau,  the  Pen- 
sion Bureau,  the  Patent  Office,  the  General  Land 
Office,  the  Office  of  Education,  the  United  States 
Geological  Survey,  etc.  A  word  or  two  with  regard 
to  one  of  these  bureaus,  namely,  the  Office  of  Edu- 
cation, is  necessary.  This  bureau  was  formed  merely 
for  the  collection  and  dissemination  of  statistics  and 
information  relative  to  educational  matters,  both  in 
this  country  and  in  foreign  countries.  It  has  no 
powers  of  supervision  over  educational  administra. 
tion  in  this  country,  because  of  the  fact  that  this 
matter  is  not  within  the  competence  of  the  national 
ofovernment. 

The  Department  of  Commerce  and  Labor,  which 
was  formed  in  1903,  was  formed  in  somewhat  the 
same  manner  as  the  Department  of  the  Interior.  In 
the  years  immediately  preceding  its  formation,  the 
management  of  a  long  series  of  matters  of  a  com- 
mercial character  had  been  entrusted  to  the  Treasury 


EXECUTIVE  DEPARTMENTS.  153 

Department.  Furthermore,  shortly  before  the  for- 
mation of  the  present  department,  a  Department  of 
Labor  had  been  organized,  with  the  object  of  per- 
forming for  industrial  questions  somewhat  the  same 
duties  which  the  education  office  of  the  Department 
of  the  Interior  had  been  performing  for  educational 
questions.  The  present  Department  of  Commerce 
and  Labor  was  organized  to  take  over  the  work  of 
these  commercial  bureaus  of  the  Treasury  Depart- 
ment and  that  of  the  Department  of  Labor.  Its 
duty  is,  according  to  the  act  which  established  it, 
"  to  foster,  promote,  and  develop  the  foreign  and 
domestic  commerce,  the  mining,  manufacturing,  ship- 
ping, and  fishery  industries,  the  labor  interests  and 
the  transportation  facilities  of  the  United  States." 
The  bureaus  of  which  it  is  composed  are  the  Light- 
House  Board,  the  Light-House  Establishment,  the 
Steamboat  Inspection  Service,  the  Bureau  of  Naviga- 
tion, the  United  States  Shipping  Commissioners,  the 
National  Bureau  of  Standards,  the  Coast  and  Geodetic 
Survey,  that  of  the  Commissioner  of  Immigration, 
the  Bureau  of  Statistics  of  Foreign  Commerce,  the 
Census  Office,  the  Fish  Commission,  the  Bureau  of 
Manufactures,  and  the  Bureau  of  Corporations.  In 
addition  to  collectino-  and  disseminatinof  information, 
this  department  has  certain  functions  of  supervision, 
particularly  with  regard  to  corporations  engaged  in 
foreign  and  interstate  commerce,  with  the  exception 
of  common  carriers,  and  certain  executive  functions 
to  perform,  as,  for  example,  the  maintenance  of  the 
light-house  service. 

The  Department  of  Agriculture  has  functions  re- 
semblinof  those  of  some  of  the  bureaus  of  the  De- 


154  CENTRAL  ADMINISTRATION. 

partment  of  the  Interior — that  is,  the  collection  and 
dissemination  of  statistics  and  information  relative  to 
the  agricultural  industry.  One  of  the  most  important 
of  its  divisions  is  the  bureau  of  animal  industry,  whose 
duty  is  to  prevent,  so  far  as  its  limited  powers  allow, 
the  exportation  of  diseased  cattle,  and,  by  co-opera- 
tion with  similar  state  bureaus,  to  provide  means  for 
the  suppression  and  extirpation  of  contagious  dis- 
eases of  cattle.  Another  bureau  is  the  Bureau  of 
Soils.  In  this  and  other  bureaus  of  the  department, 
scientific  work  of  the  highest  value  has  been  done, 
such  as  the  investigation  of  the  characteristics  of 
soils  in  the  United  States  from  the  point  of  view 
of  their  adaptability  to  the  raising  of  particular  crops. 
Besides  these  well  recognized  departments,  there 
are  a  few  independent  boards  or  commissions,  whose 
duties  are  more  or  less  important.  The  most  notable 
of  these  are  the  Civil  Service  Commission,  which  has 
charge  of  the  administration  of  the  civil  service  law 
and  rules,  and  the  Interstate  Commerce  Commission, 
which  is  vested  with  powers  of  supervision  over  the 
transportation  corporations  of  the  country  engaged  in 
interstate  commerce. 

//.  —  The  state  governinents. 

As  a  result  of  the  democratic  movements  of  the 
middle  of  the  nineteenth  century,  most  of  the  officers 
of  the  state  governments  corresponding  to  the  heads  of 
departments  in  the  national  government,  became,  as 
has  been  pointed  out,  elective.  These  officers  were 
the  secretary  of  state,  whose  duties,  with  the  excep- 
tion of  those  relating  to  foreign  affairs,  are  about  the 
same  as  those  of  the  officer  of  the  same  name  in  the 


EXECUTIVE  DEPARTMENTS.  155 

national  government ;  a  head  of  the  finance  depart- 
ment, known  sometimes  as  treasurer,  sometimes  as 
auditor,  and  sometimes  as  comptroller ;  in  a  number 
of  states  a  further  financial  officer  who  is  to  receive 
or  disburse  public  moneys,  and  also  one  who  is  to  audit 
accounts  against  the  state  ;  and  an  attorney-general, 
who  is  the  lesral  adviser  of  the  officers  of  the  state 
government  and  sometimes  has  powers  of  super- 
vision, under  the  direction  of  the  governor,  of  the 
local  prosecutors.  These  officers  may  be  said  to  be 
the  normal  "  state  officers,"  as  they  are  called  in  all 
states  of  the  Union.  There  is,  it  will  be  noticed,  in 
this  list  no  officer  at  the  head  of  the  state  military  ad- 
ministration. Military  matters  are,  for  the  most  part, 
attended  to  by  the  governor  in  person,  with  the  aid  of 
his  military  staff,  particularly  the  adjutant  general. 

In  addition  to  these  "state  officers,"  there  are  in 
all  states  a  series  of  officers  who  really  are  at  the 
head  of  state  departments  but  who  vary  greatly  in 
different  states,  very  largely  in  accordance  with  the  in- 
dustrial and  other  social  conditions  obtaining  therein. 
As  a  general  thing,  the  higher  the  industrial  de- 
velopment of  the  state  the  greater  the  number  of 
its  officers.  Thus  in  the  state  of  New  York  there 
were  in  1901  nearly  100  different  boards  of  com- 
missioners and  trustees,  "  while  Massachusetts,  Penn- 
sylvania, and  other  public  states  have  alike  number."  ^ 
Further,  the  tendency  seems  to  be  towards  an  increase 
in  the  number  of  these  departments.^ 

'  Blue,  "  Tendencies  in  State  Administration,"  Annals  of  the  American 
Academy,  vol.  xviii.,  p.  434. 

*  Thus  it  is  said:  "  The  legislation  of  1901  in  regard  to  the  general  structure 
and  function  of  state  government  presents  many  features  of  interest  and  im- 
portance.    One  of  the  most  singular  is  the  remarkable  increase  in  the  number 


156  CENTRAL  ADMINISTRATION. 

These  boards  and  officers  have  various  duties  to 
perform.  Some  have  mere  powers  of  inspection,  such 
as  factory  inspectors,  insurance  and  bank  superin- 
tendents, and  inspectors  of  mines  ;  some  are  examin- 
ing bodies  for  different  professions  and  occupations, 
such  as  boards  of  registration  for  medicine,  dentistry, 
and  pharmacy,  civil  service  boards,  and  examining 
boards  for  barbers,  plumbers,  and  even  horse-shoers. 
Some  have  scientific  or  ^2/^j-z-scientific  functions  to 
discharge,  such  as  boards  of  agriculture  and  horti- 
culture and  statistical  boards,  while  some  have 
definite  executive  or  supervisory  work  to  do,  such  as 
the  various  state  superintendents  of  schools  or  boards 
of  education,  state  boards  of  charities  and  public 
health.^ 

The  rapid  increase  of  these  offices  and  the  conse- 
quent rapid  increase  of  the  expenses  of  state  adminis- 
tration have  resulted  in  an  effort  of  late  years  to 
consolidate  some  of  these  largely  independent  au- 
thorities, and  to  adopt,  to  a  degree  at  any  rate,  the 
policy  of  the  federal  government  in  combining  the 
various  offices  established  for  some  particular  ad- 
ministrative purpose  under  the  direction  of  a  few 
heads  of  departments.     The  governors  of  several  of 

of  new  departments,  boards  and  commissions  or  commissioners,  for  the  inspec- 
tion, supervision,  or  regulation  of  various  classes  of  activity  within  the  state. 
These  new  governmental  agencies  are  created  for  the  protection  of  public  health, 
of  personal  safety,  and  in  the  interest  of  agriculture  or  labor." — New  York 
State  Library  Bulletin^  72,  Review  of  Legislation,  1901,  p.  15.  In  igo2 
"  More  than  a  score  of  these  [boards,  commissions,  and  other  offices]  were 
created,  some  of  which  amounted  only  to  a  redistribution  of  functions,  while 
others  involved  the  extension  of  the  government's  activity  into  new  fields." 
—Ibid.y  Bulletin,  80,  Review  of  Legislation,  1902,  p.  713. 

'  See,  for  a  classification  and  discussion  of  these  boards  and  their  work, 
White,  "  State  Boards  and  Commissions,"  Political  Science  Quarterly,  vol. 
xviii.,  p.  631. 


EXECUTIVE  DEPARTMENTS.  157 

the  states  have  called  attention  to  the  defects  of  the . 
existing  unconcentrated  system,  and  several  state 
legislatures  have  passed  laws  consolidating  quite  a 
number  of  these  offices.^  One  of  the  most  marked 
instances  of  this  tendency  towards  consolidation  is  to 
be  found  in  the  case  of  the  Board  of  Control  in 
Iowa,  in  which  were  consolidated  all  the  powers 
formerly  vested  in  the  various  boards  having  charge 
of  special  state  charitable  institutions.^  The  example 
of  Iowa  was  followed  in  nine  other  states  by  1901, 
and  it  is  said  :  "  If  the  movement  should  continue  as 
rapidly  during  the  next  decade  as  it  has  during  the 
last,  the  centralization  of  control  over  state  institu- 
tions would  very  soon  be  completed."^ 

The  establishment  of  this  vast  number  of  new 
state  offices  and  departments  has  naturally  had  the 
effect  of  increasing  considerably  the  importance  of  the 
position  of  the  governor,  since  it  has  had  the  effect  of 
vesting  in  him  a  much  larger  power  of  appointment 
than  was  accorded  to  him  by  the  system  of  state  govern- 
ment in  force  in  i860.  It  must  not,  of  course,  be  un- 
derstood that  membership  in  all  the  new  boards  is 

'See  Blue,  loc.  cii.,  Ne7v  York  State  Library  Bulletin,  76,  Diegst  of  Gov- 
ernor's  Messages,  p.  398;  see  also  ibid..  Bulletin,  80,  Kevieiv  of  Legislation, 
1902,  p.  715,  where  it  is  said:  "  The  tendency  towards  centralization  of  ad- 
ministrative authority  is  clearly  evident  in  the  legislature  of  1902,  particularly 
in  Massachusetts  and  New  York.  .  .  .  The  centralizing  tendencies  evi- 
dent in  two  such  states  as  New  York  and  Massachusetts,  where  the  urban  and 
industrial  conditions  characteristic  of  recent  times  are  so  highly  developed,  are 
very  significant.  They  seem  to  foreshadow  like  changes  in  other  states  and 
a  general  movement  toward  greater  unity  in  state  administration." 

'^  See  Bowman,  "The  Administration  of  Iowa,"  Columbia  University 
Studies,  etc.,  vol.  xviii.,  p.  112. 

^  New  York  State  Library  Bulletin,,  72  Review  of  Legislation,  1901,  p.  17. 
In  the  article  on  State  Boards  and  Commissions  by  Mr.  White,  published  in 
the  Political  Science  Quarterly,  vol.  xviii.,  p.  655,  is  to  be  found  a  proposition 


158  CENTRAL  ADMINISTRATION. 

the  result  of  a  gubernatorial  appointment.  For  the 
members  of  a  large  number  of  the  boards  are  elected 
by  the  people  or  by  the  legislature,  or  elected  state 
officers  are  made  ex-officio  members  of  boards, 
most  of  whose  work  is  then  done  by  a  paid  secre- 
tary. Further,  whatever  may  be  the  method  of 
filling  these  offices  the  governor  seldom  has  any 
absolute  power  of  removal,  his  power  of  removal, 
where  it  is  recognized,  being  ordinarily  for  cause  and 
often  depending  on  the  concurring  action  of  the 
state  senate. 

The  composition  of  these  new  offices  varies.  Three 
plans,  it  may  be  said,  have  been  followed  :  First, 
we  find  boards  whose  members  retire  from  office  at 
such  times  as  to  make  the  boards  reasonably  per- 
manent bodies.     Such  boards  are  quite  large,  when 

for  the  grouping  of  these  commissions  into  executive  departments  which  pro- 
vides for  all  the  important  boards  and  groups  them  as  follows  : 

"  Department  of  Education  :  Public  Schools  ;  Nautical  Training  ;  Free 
Public  Libraries  ;    Normal  Schools. 

Department  of  Examinations  :  Civil  Service  ;  Dentistry  ;  Medicine  ;  Phar- 
macy ;  Pilots. 

Departments  of  Manufactures  :  Labor  Statistics  ;  Arbitration  and  Concilia- 
tion ;   Inspection  of  Manufactures  ;   Lumber  ;   Liquors  ;  etc. 

Department  of  Agriculture  :  Agriculture  ;  Cattle  ;  Dairy  ;  Horticulture  ; 
Inland  Fish  and  Game. 

Department  of  Corporate  Control :  Railroads  ;  Gas  ;  Telephone  ;  Street 
Railways  ;  Banks  ;  Insurance. 

Department  of  Public  Works  :  Highways  ;  Parks  ;  Sewerage  ;  Buildings  ; 
Land  ;  Harbor. 

Departments  of  Charities  and  Corrections  :  Lunacy ;  Feeble-minded ; 
Blind,  f/c,  ;  Charity  Work  ;   Prisons;   Reformatories,  f/f. 

Department  of  Public  Safety  ;   Health  ;  Fire  Marshal  ;  Police." 

Of  course  this  classification  does  not  pretend  to  embrace  all  of  the  depart- 
ments of  the  state  government.  It  attempts  to  classify  merely  the  various 
bureaus  and  offices  which  have  arisen  since  the  middle  of  the  19th  century. 
To  get  a  complete  view  of  the  work  done  by  the  state  government  it  would 
be  necessary  to  add  to  this  list  the  work  done  by  the  officers  who  have  been 
spoken  of  as  "  state  officers." 


EXECUTIVE  DEPARTMENTS.  159 

their  members  are  unpaid  and  the  detailed  work  is 
done  by  a  paid  secretary,  or 

Second,  these  boards  are  small,  consisting  of  not 
more  than  three  members.  Their  members  are  in 
such  case  usually  salaried  and  themselves  attend  to 
the  detailed  work.  There  would,  seem  to  be  a 
tendency  towards  this  form  of  organization.  This  is 
characteristic  of  the  Iowa  Board  of  Control  which 
has  been  so  extensively  copied  by  other  states. 

Third,  we  sometimes  find  the  office  entrusted  to 
one  officer,  who  is  then,  of  course,  salaried. 

Each  of  these  methods  of  organization  has  its  ad- 
vantages. The  unsalaried  board  form  is  believed  to 
take  the  administration  of  the  particular  work  en- 
trusted to  the  board  somewhat  more  effectually  out 
of  politics  than  any  other  form  of  organization,  and 
has  been  most  enthusiastically  advocated  for  the  ad- 
ministration of  state  charities  by  those  interested  in 
those  matters.  On  the  other  hand,  it  is  claimed  that 
this  method  of  organization  produces  an  inefficient 
and  expensive  administration,  and  the  tendency  would 
seem  to  be  away  from  it  and  towards  a  small  paid 
board  or  a  single  paid  commissioner. 

It  is  probable  that  both  freedom  from  politics  and 
efficiency  could  be  secured  under  the  commission 
form  of  organization  if  the  various  offices  could  be 
grouped  together  in  well  defined  departments  accord- 
ing to  some  such  plan  as  has  been  referred  to.  If 
such  a  plan  were  adopted  it  would  be  comparatively 
easy  to  bring  it  about  in  time  that  the  only  political 
officer  in  the  department  would  be  the  head  of  de- 
partment, whether  appointed  by  the  governor — which 
would  undoubtedly  be  the  best  method — or  elected 


i6o  CENTRAL  ADMINISTRATION. 

by  the  people  of  the  state  or  by  the  legislature.  The 
heads  of  the  various  bureaus  or  offices  into  which  the 
department  would  then  be  divided  need  not  change 
with  each  state  administration,  but,  being  under  the 
general  direction  and  control  of  a  head  of  department, 
might  develop  in  time  into  non-political  administrative 
officers  having  a  reasonably  permanent  tenure.  Un- 
der present  conditions  such  a  solution  of  the  question 
is  difficult  if  not  impossible,  on  account  of  the  inde- 
pendent position  most  of  the  heads  of  these  offices 
occupy  towards  all  other  officers  in  the  state  govern- 
ment — even  the  governor. 

///. — Local  subordinates  of  the  executive  departmcfits. 

Certain  of  the  executive  departments  have  scat- 
tered about  the  country,  in  districts  into  which  it  has 
been  divided  for  the  purposes  of  administration,  sub- 
ordinate officers  who  are  more  or  less  subject  to  the 
control  of  the  heads  of  departments.  Thus  in  the 
national  administration  the  treasury  department  has 
its  collectors,  naval  officers,  surveyors,  inspectors, 
measurers,  weighers,  and  gangers  in  the  customs  and 
internal-revenue  districts  ;  the  department  of  the  in- 
terior, its  land  receivers  and  registrars  and  Indian 
agents,  etc.  The  national  administration  is  highly 
centralized,  rarely  making  use  of  the  officers  of  the 
state  or  of  the  various  local  corporations  within  the 
state,  such  as  the  counties  and  the  towns.  While  this 
is  true  also  of  certain  branches  of  state  administration 
(as,  for  example  in  New  York,  the  factory  inspectors 
of  the  labor  commissioner  and  the  various  agents  of 
the  department  of  public  works),  still  in  many  cases 
the  central  state  crovernment  makes  use  of   officers 


EXECUTIVE  DEPARTMENTS.  i6: 

who  are  at  the  same  time  officers  of  the  local  corpora- 
tions, or  even  imposes  duties  of  state  concern 
upon  such  local  corporations  themselves.  Indeed, 
these  local  corporations  are  primarily  administrative 
districts  for  the  purposes  of  the  central  state  admin- 
istration.^ For  example,  in  most  of  the  states  the 
counties  and  the  towns  attend  to  the  collection  of 
state  taxes,  defray  most  of  the  expenses  of  the  judicial 
administration,  take  care  of  the  poor,  schools,  and 
highways,  while  the  county  authority  is  not  uncom- 
monly made  a  board  of  canvassers  for  state  elections. 
The  control  which  the  central  executive  departments 
have  over  such  local  corporations  and  their  officers, 
both  when  actingr  as  the  ag-ents  of  the  central  admin- 
istration  and  when  actinor  as  the  ao^ents  of  the  local 
corporations,  is,  as  compared  with  the  control  pos- 
sessed by  the  departments  of  the  national  adminis- 
tration over  their  subordinates,  very  slight.  At  the 
same  time  it  is  increasing,  particularly  in  the  fields  of 
education,  public  health,  charities,  and  taxation  and 
accounts.  Most  of  the  local  corporations,  however, 
elect  their  own  officers,  who,  when  acting,  as  they  so 
often  do,  as  the  agents  of  the  central  administration, 
are  not  infrequently  quite  independent  of  the  heads 
of  the  central  executive  departments. 

'  Infra,  p,  167, 


BOOK   III. 
LOCAL    ADMINISTRATION. 


CHAPTER    I. 

LOCAL   CORPORATIONS     IN    THE    UNITED    STATES. 

/. — Corporate  capacity  of  local  areas. 

The  original  English  system  of  administration  did 
not  permit  of  the  recognition  of  corporate  capacity  in 
the  various  local  areas.  At  the  time  of  the  Norman 
Conquest  William  the  Conqueror  districted  the  king- 
dom of  England,  using,  in  the  main,  the  old  divisions 
— that  is,  the  shires — which  had  come  down  from 
Anglo-Saxon  times,  but  did  not  recognize  that  these 
divisions  were  local  corporations  with  powers  of  local 
government.  The  conception  that  the  local  areas 
were  merely  administrative  districts  for  the  purpose 
of  the  administration  of  government  was  due  to  two 
things. 

First,  the  hostile  relations  of  the  conquering  Nor- 
mans and  the  conquered  Saxons  made  it  impossible 
to  conduct  the  government  under  any  scheme  grant- 
ing large  local  powers.  Little  freedom  could  be 
granted  to  the  localities  if  every  matter  in  their  juris- 
diction was  to  be  decided  from  race  motives.     Some 

162 


LOCAL  CORPORATIONS.  163 

system  of  government  must  be  devised  by  means  of 
which  the  peace  might  be  preserved  and  the  king 
might  stand  as  an  arbiter  between  the  conflicting  race 
elements  of  the  nation.^ 

In  the  second  place,  William  the  Conqueror  had 
had  an  experience  with  the  feudal  system,  based  as  it 
was  on  the  recognition  of  large  local  powers,  and  was 
determined  to  do  what  within  him  lay  to  prevent  its 
development  in  his  new  kingdom. 

Therefore  the  old  districts  which  were  maintained, 
/.  e.,  the  county  or  shire,  the  hundred,  and  the  bor- 
ough, were  recognized  as  administrative  districts,  in 
which  were  placed  officers  appointed  and  dismissed  at 
the  pleasure  of  the  crown,  who  were  to  attend  to  the 
administration  of  all  public  business  needing  atten- 
tion in  the  district.  The  centralized  character  of  the 
administrative  system  was  later  changed,  as  will  be 
pointed  out,  but  the  local  areas  remained  for  a  long 
time  as  they  were  during  the  Norman  period — that  is, 
non-corporate  bodies.^  It  was  not  until  1888  that  the 
English  county,  and  not  until  1894  that  the  English 
parish,  really  became  corporations.  By  the  beginning 
of  the  reign  of  the  Tudors,  however,  municipal  bor- 
oughs were  incorporated — that  is,  were  recognized  as 
juristic  persons  with  the  right  to  hold  property,  to  sue 
and  be  sued,  and  to  exercise  specific  governmental 
powers  such  as  police  and  judicial  powers. 

The  rule  adopted  in  England  was  applied  to  the 
local   districts  of  the  American  states.     They  were, 

' Gneist,  Self-government,  etc.,  p.  14. 

''See  Russell  vs.  The  Men  of  Devon,  2  Durnford  &  East,  667,  A.D.  1788. 
In  this  case  it  was  held  that  an  action  in  damages  could  not  be  maintained 
against  a  county  for  negligence  in  the  care  of  a  bridge,  because,  although  it  wis 
the  county's  duty  to  repair  the  bridge,  the  county  was  not  incorporated. 


i64  LOCAL  ADMINISTRATION. 

with  the  exception  of  the  incorporated  cities,  not  re- 
garded as  corporations,  or  as  having  services  of  their 
own  to  attend  to,  apart  from  the  sphere  set  aside  to 
them  by  the  statutes  of  the  state  legislature,  nor  could 
they  even  hold  property  or  sue  or  be  sued.^ 

One  result  of  the  original  non-corporate  character 
of  towns  is  to  be  found  in  the  fact  that,  by  common 
law,  the  property  of  an  inhabitant  of  a  New  England 
town  may  be  taken  upon  execution  on  a  judgment 
against  the  tovvn.^  The  first  step  in  New  York  to- 
wards recoofnizingf  that  the  areas  of  administration 
possessed  any  juristic  personality  was  taken  in  the 
case  of  North  Hempstead  vs.  Hempstead,^  which  held 
that  a  town  had  a  certain  corporate  capacity,  though 
what  that  corporate  capacity  was  was  not  clearly  de- 
fined. In  1 80 1  the  legislature  expressly  made  the 
county  a  capable  grantee  of  lands,'*  and  finally  the 
New  York  revised  statutes  of  1829  expressly  declared 
each  county  and  town  to  be  a  body  corporate  with 
certain  specified  powers,  to  wit,  the  powers  to  hold 
property  and  to  sue  and  be  sued.^  The  principle 
established  in  Massachusetts  and  New  York  has  been 
adopted  in  most  of  the  states  of  the  American  Union, 

'  See  for  New  York,  which  may  be  taken  as  typical,  the  cases  of  Jackson  vs. 
Hartwell,  8  Johnson,  422;  Jackson  vs.  Cory,  ibid.,  385;  Hornbeck  vs.  West- 
brook,  9  Johnson,  73;  and  Jackson  vs.  Schoonmaker,  2  Johnson,  230. 

'  Beardsley  vs.  Smith,  16  Conn.,  368;  see  also  Bloomfield  vs.  Charter  Oak 
Bank,  I2i  U.  S.,  121,  129;  Horner  w.  Coffey,  25  Miss.,  434. 

'2  Wendell,  New  York,  109.  In  Massachusetts,  however,  towns  were 
authorized  to  grant  lands  in  1635,  to  sue  and  be  sued  in  1694,  and  were  ex- 
pressly incorporated  in  1785.  See  9  Gray,  Mass.,  511,  note,  which  gives 
a  history  of  the  legislation  as  to  towns. 

*i   Kent  and  Radcliff's  Laws,  561. 

*  The  chapter  devoted  to  the  towns  is  explained  by  the  original  report  of 
the  revisers  to  the  legislature,  in  1827,  in  which  it  is  said  that  "this  article  is 
wholly  new  in  its  present  form." 


LOCAL  CORPORATIONS.  165 

SO  that  It  may  be  said  that  the  American  county  and 
town,  where  they  have  any  administrative  importance, 
are  at  the  present  time  bodies  corporate.^ 

But  while  the  result  of  American  development  has 
been  the  recognition  of  the  rural  local  areas  as  public 
corporations,  the  further  step  has  not  been  taken  of 
recognizing  that  such  corporations  possess  any  sphere 
of  action  of  their  own.  The  duties  attended  to  by 
them  or  by  the  officers  acting  within  them  are  re- 
garded generally  as  almost  exclusively  of  central 
concern,  and  their  officers,  though  elected  by  the 
people  of  the  locality,  are  not  regarded  as  local 
officers  in  the  sense  that  they  are  agents  of  the  local 
corporations.  They  are  simply  state  officers  who  are, 
in  accordance  with  the  method  adopted  in  the  United 
States  of  filling  these  positions,  elected  by  the  people 
resident  in  the  local  areas.  The  position  of  the  town, 
or  township  as  it  is  sometimes  called,  is  well  stated  in 
the  case  of  Lorillard  vs.  The  Town  of  Monroe.' 

The  several  towns  in  this  state  says  Judge  Denio,  are  cor- 
porations for  certain  special  and  very  limited  purposes,  or  to 
speak  more  accurately,  they  have  a  certain  limited  corporate 
capacity.  They  may  purchase  and  hold  lands  withm  their  own 
limits  for  the  use  of  their  inhabitants.  They  may,  as  a  corpora- 
tion, make  such  contracts  and  hold  such  personal  property  as 
may  be  necessary  to  the  exercise  of  their  corporate  or  adminis- 
trative powers,  and  they  may  regulate  and  manage  their  corporate 
property,  and,  as  a  necessary  incident,  may,  sue  and  be  sued 
where  the  assertion  of  their  corporate  rights  or  the  enforcement 
of  their  corporate  liabilities  shall  require  such  proceedings.  In 
all  other  respects — for  instance,  in  everything  which  concerns 
the  administration  of  civil  or  criminal  justice,  the  preservation  of 

'See  Dillon,  Municipal  Corporations,  4th  ed.,  i.,  chap.  2;   Levy  Court  vs. 
Coroner,  2  Wallace,  501,  507. 
'■'11  New  York,  392,  393. 


1 66  LOCAL  ADMLNLSTRATION. 

the  public  health  and  morals,  the  conservation  of  highways,  roads, 
and  bridges,  the  relief  of  the  poor,  and  the  assessment  anu  collec- 
tion of  taxes — the  several  towns  are  political  divisions,  organised 
for  the  convenient  exercise  of  portions  of  the  political  power  of 
the  state,  and  are  no  more  corporations  than  the  judicial  or  assem- 
bly districts.  The  functions  and  the  duties  of  the  several  town 
officers  respecting  these  subjects  are  judicial  and  administrative 
and  not  in  any  sense  corporate  functions  or  duties.  The  judge 
goes  on  to  say:  It  is  a  convenient  arrangement  to  have  the 
assessors  chosen  by  the  electors  of  the  towns,  [but],  when  chosen, 
they  are  public  officers,  just  as  much  as  the  highest  official  func- 
tionaries of  the  state.  They  are,  therefore,  not  in  any  legal 
sense  the  servants  or  agents  of  the  towns. 

In  New  England,  however,  where  the  village  or- 
ganization has  never  flourished,  towns  do  sometimes 
have  local  services,  such  as  waterworks,  in  the  man- 
agement of  which  they  are  regarded  as  having  the 
characteristics  of  municipal  corporations  proper  and 
are,  therefore,  held  liable  for  negligence  in  the  per- 
formance of  these  local  duties.^ 

The  position  of  the  county,  which  is  quite  similar 
to  that  of  the  town,  is  well  stated  in  the  case  of  Ham- 
ilton County  vs.  Mighels.^     The  court  says  here  : 

A  county  organization  is  created  almost  exclusively  with  a 
view  to  the  policy  of  the  state  at  large,  for  purposes  of  political 
organization  and  civil  administration,  in  matters  of  finance,  of 
education,  of  provision  for  the  poor,  of  military  organization,  of 
the  means  of  travel  and  transport,  and  especially  for  the  general 
administration  of  justice.  With  scarcely  an  exception,  all  powers 
and  functions  of  the  county  organization  have  a  direct  and  ex- 
clusive reference  to  the  general  policy  of  the  state,  and  are,  in 
fact,  but  a  branch  of  the  general  administration  of  that  policy.' 

'  See  Hand  vs.  Brookline,  126  Mass.,   324. 

*  7  Ohio  State,  109,   119. 

'See  also  Talbot  County  vs.  Queen  Anne's  County,  50  Md.,  245,  259. 


LOCAL  CORPORATIONS.  167 

Municipal  corporations  proper,  /.  e.,  cities,  villages, 
and  incorporated  towns,  are  regarded  as  organized 
primarily  for  the  satisfaction  of  the  local  needs  of 
their  inhabitants.  They  are,  therefore,  not  regarded 
as  so  representative  of  the  state  as  are  the  quasi-vci\x- 
nicipal  corporations,  such  as  towns  and  counties.  At 
the  same  time,  no  more  than  the  ^z/^jz-municipal  cor- 
porations are  they  regarded  as  possessing  any  in- 
herent powers  of  local  government  to  be  derived  from 
the  fact  of  their  corporate  existence.^ 

It  will  be  seen  what  a  slio-ht  recoo-nition  there  has 
been,  notwithstanding  the  corporate  capacity  of  the 
local  areas,  of  the  possession  by  them  of  any  sphere 
of  action  of  their  own  as  distinguished  from  their 
sphere  of  action  as  agents  of  the  state  government. 
Their  corporate  capacity  is  made  a  mere  incident  to 
their  public  governmental  capacity,  and  is  of  value  to 
them  only  in  that,  through  it,  they  may  own  land  and 
property  generally.  The  courts  have,  for  example, 
held  that  as  a  result  of  their  corporate  capacity  coun- 
ties and  towns  have  no  power  to  borrow  money.^  It 
is  true,  however,  that  either  general  or  special  stat- 
utes have  conferred  upon  local  areas  the  power  to 
borrow  money  for  a  series  of  specified  purposes. 

Thus,  notwithstandinor  the  sfreat  decentralization 
of  the  administrative  system  which  has  resulted  from 
the  development  of  American  local  institutions,  and  to 
which  attention  will  be  called  in  the  next  chapter,  and 
notwithstanding  the  recognition  of  the  juristic  person- 
ality of  the  local  areas,  it  cannot  be  said  that  the 
course  of  American  local  administrative  history  has 
given  to  the  localities  any  sphere  of  independent  local 

'  Infra,  p.  169.  '^  Starin  z's.  Town  of  Genoa,  23  N.  Y.,  439,  447. 


1 68  LOCAL  ADMLNLSTRATLON. 

action.  They  are,  as  their  English  prototypes  were 
after  the  Norman  Conquest,  agents  of  the  state  with, 
however,  a  corporate  capacity,  which  is  to  be  made 
use  of  more  for  the  benefit  of  the  state  as  a  whole 
than  for  the  benefit  of  a  particular  area.  Our  consti- 
tutional local  self-o^overnment  has  consisted  rather  in 
the  right  of  the  people  of  the  localities  to  choose  the 
officers  who  are  to  execute  the  laws,  both  general  and 
local,  than  in  any  right  of  the  people  of  the  localities 
to  determine  what  branches  of  administrative  activity 
they  shall  take  up.^ 

//. — Subjection  of  the  local  corporations  to  the  control 

of  the  legislature. 

I.  Local  corporations  are  authorities  of  enumerated 
powers. — It  has  been  shown  that  local  corporations 
are  not  recognized  as  having  any  inherent  sphere  of 
local  action.  This  is  due  to  the  rule  of  law  that  the 
state  legislature,  in  the  absence  of  a  constitutional 
provision,  is  absolutely  supreme,  and  to  the  practice, 
which  has  been  adopted  by  the  legislatures  of  this 
country,  of  enumerating  in  detail  the  powers  of  all 
public  authorities.  Local  corporations  being  merely 
public  authorities  with  a  territorially  circumscribed 
jurisdiction,  there  is  no  escape  from  the  conclusion 
that  their  powers  must  be  enumerated  in  detail  by  the 
legislature.  No  better  or  more  authoritative  state- 
ment  of  the  powers  possessed  by  local  corporations 
can  be  found  than  that  given  by  Judge  Dillon  in  his 
great  work  on  municipal  corporations,  and  approved 

'  As  to  the  conception  of  local  self-government  in  this  country,  see  Eaton, 
"  Right  to  Local  Government,"  Harvard  Law  Review,   13,  p.  441. 


LOCAL  CORPORATIONS.  169 

by  many  of  the   later   decisions  of  the  courts  them- 
selves.^    He  says  : 

It  is  a  general  and  undisputed  proposition  of  law  that  a  ?fiuni- 
cipal  corporation  possesses  and  can  exercise  the  following  powers  and 
no  others :  First,  those  granted  in  express  words  ;  second,  those 
necessarily  or  fairly  implied  in,  or  incidefit  to  the  powers  expressly 
granted  ;  third,  those  essential  to  the  declared  objects  and  pur- 
poses of  the  corporation — not  simply  convenient,  but  indispen- 
sable. Any  fair,  reasonable  doubt  concerning  the  existence  of 
power  is  resolved  by  the  courts  against  the  corporation,  and  the 
power  is  denied.  Of  every  municipal  corporation,  the  charter  or 
statute  by  which  it  is  created  is  its  organic  act.  Neither  the  cor- 
poration nor  its  officers  can  do  any  act,  or  make  any  contract,  or 
incur  any  liability,  not  authorized  thereby,  or  by  some  legislative 
act  applicable  thereto.  All  acts  beyond  the  scope  of  the  powers 
granted  are  void.  Judge  Dillon  adds,  that  while  the  rule  of 
strict  construction  of  corporate  powers  is  not  so  directly  applic- 
able to  the  ordinary  clauses  in  the  charter  or  incorporating  acts 
of  municipalities  as  it  is  to  the  charters  of  private  corporations 
.  .  it  is  equally  applicable  to  grants  of  powers  to  munici- 
pal and  public  bodies  which  are  out  of  the  usual  range,  or  which 
may  result  in  public  burdens,  or  which,  in  their  exercise,  touch 
the  right  to  liberty  or  property,  or,  as  it  may  be  compendiously 
expressed,  any  common-law  right  of  the  citizen  or  inhabitant.' 

The  necessary  result  of  such  a  rule  of  law,  with  the 
accompanying  strict  construction  which  is  usual,  is 
that  public  corporations  will  often  apply  to  the  source 
of  authority — that  is,  the  legislature — in  order  that 
any  doubt  as  to  the  existence  of  particular  powers 
which  it  is  desirable  to  exercise,  but  which  are  not 
clearly  conferred,  may  be  dissipated. 

2,  Legislative  control  of  local  corporations. — Fur- 
ther, it  is  to  be  remembered  that  almost  all  the  local 
corporations  in  the  United  States  have,  as  has  been 

'  Dillon,  Municipal  Corporations^  4th  ed.,  p.  145. 
2/^tc/.,  p.  148. 


I70  LOCAL  ADMINISTRATION. 

shown,  to  discharge  functions  interesting  the  state  as 
a  whole.  They  are  practically  agents  of  the  central 
government  of  the  state.  This  is  true,  even  of  the 
cities.^  The  fact  that  these  local  corporations  are 
agents  of  the  central  state  government  must  have  an 
important  influence  on  their  relation  to  the  legisla- 
ture, for  the  legislature  is  in  the  American  system  of 
decentralized  administration,  or  local  self-government, 
as  we  usually  call  it,  the  only  guardian  of  administra- 
tive harmony  and  uniformity.  So  long  as  a  local 
corporation  is  merely  an  organization  for  local  gov- 
ernment, the  legislature  is  not  necessarily  called  upon 
to  interfere  with  or  control  its  actions.  But  just  so 
soon  as  a  local  corporation  begins  to  act  as  the  agent 
of  the  state,  to  exercise  powers  which  concern  the 
people  of  the  state  as  a  whole,  it  becomes  necessary 
for  the  guardian  of  the  people  of  the  state  to  see  to 
it  that  these  powers  are  ♦exercised  uniformly  and 
efficiently  throughout  the  state. 

Unfortunately,  however,  for  American  local  cor- 
porations, and  particularly  for  American  cities,  which 
have  important  local  functions  to  discharge,  the 
American  state  legislature  has  not  distinguished,  so 
clearly  as  it  should  have  done,  these  two  kinds  of 
activity.  It  has  in  many  cases  forgotten  that  local 
corporations  are  discharging  local  functions,  in  the 
discharge  of  which  they  should  be  largely  free  from 
central  control ;  it  has  perceived  merely  that  these 
local  corporations  are  state  agents,  which  by  law  are 
subject  to  its  control,  and  it  has  not  scrupled  to  exer- 
cise this  control  over  all  of  their  actions,  local  as  well 
as  general.     This  the  state  legislature  has  been  able 

'  Infra,  p.  2oq. 


LOCAL  CORPORATIONS.  171 

to  do  because,  apart  from  certain  rights  to  property 
which  these  corporations  may  have  under  general 
constitutional  provisions  protecting  private  property, 
the  power  of  the  legislature  over  local  corporations  is 
unlimited/ 

The  continual  exercise  by  the  legislature  of  its  un- 
questioned powers  resulted  in  the  gradual  assumption 
by  the  state  legislatures,  in  parts  of  the  country,  of  a 
long  series  of  local  powers.  This  centralization  of 
local  functions  had  a  particularly  disastrous  effect 
upon  the  cities  of  the  United  States,  causing  not  only 
great  lack  of  local  interest  in  the  management  of 
municipal  affairs,  but  also  an  ignorant  and  inefficient 
management  of  these  affairs,  and  an  unwise  solution 
of  many  of  the  problems  which  have  to  be  solved  by 
our  cities.'^  The  evil  effects  of  lesfislative  reg^ulation 
of  local  affairs  have  been  aggravated  by  the  fact  that 
this  central  interference  has  been  in  many  instances 
caused,  not  by  the  desire  on  the  part  of  the  legis- 
lature to  reform  local  abuses  or  to  grant  powers 
whose  exercise  is  desired  by  the  localities,  but  by  the 
hope  of  deriving  some  temporary  political  advantage 
for  the  party  in  control  of  the  legislature. 

The  undoubted,  well  recognized  evils  of  the  Ameri- 
can system  of  special  legislation  and  continual  legis- 
lative interference  in  purely  local  affairs  have  led 
many  of   the   states    to  insert  in  their  constitutions 

'  See  Commonwealth  vs.  Moir,  igg  Pennsylvania  State,  534,  which  held 
that  the  legislature  might  provide  for  the  state  appointment  of  the  mayor  of  a 
city  ;  Laramie  County  vs.  Albany  County,  92  U.  S.,  307,  which  held  that  the 
legislature  might  divide  a  county  and  make  such  distribution  of  its  property 
on  the  occasion  of  the  division  as  it  sees  fit  ;  and  Perkins  vs.  Slack,  86  Penn- 
sylvania State,  270,  which  held  that  the  state  legislature  could  force  a  city  to 
expend  a  large  sum  of  money  for  the  erection  of  a  city  hall. 

*See  Goodnow,  Municipal  Home  Rule,  pp.  23-28. 


172  LOCAL  ADMINISTRATION. 

provisions  intended  to  limit  the  power  of  the  legisla- 
ture to  interfere  with  the  affairs  of  local  corporations. 
In  all  these  cases,  however,  the  framers  of  the  con- 
stitution have  borne  in  mind  the  fact  that  these 
local  corporations  are  agents  of  state  government. 
They  have  therefore  been  careful  not  to  prohibit 
central  legislative  interference  except  as  to  purely 
local  matters. 

3.  Constitutional  limitation  of  legislative  control. 
— The  constitutional  provisions  which  have  been 
adopted  with  this  end  in  view  may  be  classed  under 
two  general  heads.  In  the  first  place,  they  forbid 
absolutely  interference  by  the  legislature  with  partic- 
ular matters.  Thus,  for  example,  many  of  the  con- 
stitutions assure  to  the  localities  the  right  of  the  local 
selection  of  local  officers.^  Thus,  also,  in  quite  a 
number  of  states  the  legislature  may  not  divide 
counties  or  change  the  county  seats  without  the  con- 
sent of  the  people."^  Thus  also  in  a  number  of  states 
it  is  provided  that  the  consent  of  the  local  authorities 
is  necessary  in  order  that  street  railway  franchises 
may  be  granted.^  In  a  few  states,  such,  for  example, 
as  California,  Washington,  and  Illinois,  taxes  for  local 
purposes  can  be  levied  only  by  corporate  authorities.'' 
Probably  the  most  radical  step  that  has  been  taken  is 
that  which  has  been  taken  by  the  states  of  Missouri, 

'  Goodnow,  Municipal  Home  Rule,  p.  60,  note  5,  where  it  is  shown  that 
more  than  twenty  states  have  adopted  such  a  constitutional  provision.  Some 
cases  have  claimed  the  right  to  the  local  selection  of  local  officers  in  the  absence 
of  a  specific  constitutional  provision.  People  vs.  Hurlbut,  24  Mich.,  44  ;  State 
vs.  Barker,  116  Iowa,  96.  This  is  not,  however,  the  better  rule.  See  Common- 
wealth vs.  Moir,  199  Pennsylvania  State,  534  ;  State  vs.  Smith,  44  Ohio  State, 
348  :  Commonwealth  vs.  Plaisted,  148  Mass.,  375. 

*  Ibid.,  p.  61,  note  I. 

^  Ibid.,  p.  61,  note  3.  *Ibid,  p.  60. 


LOCAL  CORPORATIONS.  173 

California,  Washington,  Minnesota,  and  Colorado. 
Here  the  constitution  provides  that  cities  of  a  certain 
size  shall  alone  have  the  power  to  frame  their  own  char- 
ters and  amend  them/  The  purpose  of  this  provision 
being  merely  to  protect  the  cities  from  legislative 
interference  in  the  management  of  their  local  affairs, 
the  constitution  has  not  been  considered  by  the  courts 
as  affecting  anything  but  what  is  purely  local.  Inas- 
much as  a  large  part  of  administrative  work  actually 
attended  to  by  cities  is  not  regarded  by  the  courts  as 
of  a  local  character,  it  follows  that  much  of  what  is 
popularly  termed  municipal  government  is  still  under 
the  control  of  the  legislature,  notwithstanding  the 
existence  of  such  a  constitutional  provision.^  But  so 
far  as  the  purely  local  affairs  of  the  cities  are  con- 
cerned, this  method  of  protecting  them  from  legis- 
lative interference  would  seem  to  be  on  the  whole 
the  most  effective  one  which  has  as  yet  been  adopted. 
The  second  class  of  constitutional  provisions 
adopted  to  protect  local  corporations  from  legislative 
interference  do  not  absolutely  prohibit  action  by  the 
legislature  but  prohibit  action  in  a  particular  manner, 
that  is,  prohibit  a  certain  kind  of  legislative  action. 
In  other  words,  inasmuch  as  the  legislative  control 
productive  of  most  evil  has  resulted  from  the  passage 
of  special  legislation,  the  constitution  attempts  to 
prohibit  special  legislation  with  regard  to  a  large 
class  of  subjects.^  At  the  same  time,  the  indirect 
effect  of  these  constitutional   provisions    prohibiting 

'  See  Kansas  City  vs.  Scarritt,  127  Mo.,  642  ;  St.  Louis  vs.  Dorr,  145  Mo.,  466. 

'See  Devvart,  "  The  Municipal  Condition  of  St.  Louis";  Hopkins,  "  The 
Municipal  Condition  of  Kansas  City,"  Louisville  Conference  for  Good  City 
Government,  p.  21S,  233.     See  also  St.  Louis  vs.  Dorr,  supra. 

'Goodnow,  Municipal  Home  Rule,  p.  56. 


J 74  LOCAL  ADMINISTRATION. 

special  legislation  is  to  strengthen  the  position  of 
local  corporations  over  against  the  legislature.  For 
the  prohibition  of  special  laws  often  prevents  the  legis- 
lature from  interfering  in  matters  of  purely  local 
concern  affecting  some  particular  municipal  corpora- 
tion, and  really  obliges  the  legislature  to  delegate 
greater  powers  than  it  otherwise  would  delegate  to 
local  bodies.  The  exact  degree  to  which  the  power 
of  the  legislature  over  local  corporations  is  limited  by 
these  constitutional  provisions  can  be  determined 
only  as  a  result  of  answering  two  questions  :  first, 
What  is  a  special  act  under  the  constitution  ?  and 
second.  What  are  local  matters  which  may  not  be 
interfered  with  by  special  act  ? 

First,  what  is  a  special  act  ?  The  only  consti- 
tution which  clearly  defines  a  special  act  is  the  con- 
stitution of  the  state  of  New  York,  adopted  in 
1894.  This  constitution  divides  the  cities  of  the 
state  into  three  classes,  and  provides  that  an  act  is 
special  which  affects  less  than  all  the  cities  of  a  class. 
The  constitution  of  New  York  differs,  however,  from 
most  of  the  constitutions  in  not  prohibiting  absolutely 
special  legislation,  but  in  making  it  more  difficult  of 
passage.^ 

In  most  of  the  states,  what  is  a  special  act  under 
the  constitution  is  to  be  determined  by  the  courts. 
In  their  decision  of  this  question,  they  have  held 
very  commonly,  that  they  may  go  back  of  an  act 
which  is  general  in  form  and  see  whether  it  is  special 
in  its  application,  and  that,  if  on  such  examination 
they  find  it  is  special  in  its  application,  they  will 
declare  it  to  be  unconstitutional.'-' 

'  Infra,  page  177.  '^  See  Devine  vs.  Cook  County,  84  111.,  59%!. 


i 


LOCAL  CORPORATIONS.  175 

On  the  other  hand,  the  courts  do  not  generally 
attempt  to  prevent  the  legislature  from  classifying 
municipal  corporations.  Practically  the  only  state  in 
which  the  courts  have  decided  that  a  constitutional 
provision  prohibiting  special  legislation  does  not  per- 
mit the  legislature  to  classify  municipal  corporations, 
is  the  state  of  Ohio.^  But,  while  permitting  the  legis- 
lature to  classify  municipal  corporations,  the  courts 
insist  that  the  classification  adopted  must  be  a  rea- 
sonable one.  Thus  they  have  held  very  generally 
that  a  classification  based  merely  upon  geographical 
conditions  is  improper.^  A  classification,  further,  of 
cities  by  name  has  been  held  to  be  improper.^  The 
courts  have,  however,  generally  regarded  the  classifi- 
cation of  local  corporations  by  population — which  is 
to  operate  in  the  future  as  well  as  in  the  present — to 
be  a  reasonable  classification,  even  if,  at  the  time 
the  classification  is  made,  only  one  city  is  to  be  found 
in  a  class.^ 

It  will  be  seen  that  the  prohibition  of  special  legis- 
lation does  not,  under  the  ordinary  decisions  inter- 
preting a  constitutional  provision  prohibiting  such 
legislation,  prevent  the  passage  by  the  legislature  of 
legislation  which  at  the  time  it  is  passed  is  really 
special  in  character.  The  reason  why  the  courts  have 
adopted  the  view  they  have  as  to  what  is  special  legis- 
lation, is  the  impossibility  of  local  development  and 
growth  under  general  acts  affecting  local  corporations 
when  such  acts  descend  into  great  detail.     So  long  as 

'  State  vs.  Cowles,  64  Ohio  St.,  162;  State  vs.  Jones,  66  Ohio  St.,  453;  State 
vs.  Beacom,  ibid.,  491. 

'Commonwealth  vs.  Patten,  88  Pa.  St.,  258. 

^City  of  Council  Grove,  20  Kans.,  619. 

4  See  Wheeler  vs.  Philadelphia,  77  Pa,  St.,  338. 


176  LOCAL  ADMINISTRATLON. 

the  plan  of  detailed  enumeration  of  powers  is  adopted, 
so  long  must  we  expect  the  courts  to  permit  the 
legislature  pretty  free  hand,  notwithstanding  the  exis- 
tence of  constitutional  provisions  forbidding  special 
legislation. 

Second,  what  are  local  affairs? — It  has  been  said 
that  the  constitutional  provisions  under  consideration 
do  not  attempt  to  prohibit  special  legislative  action 
with  regard  to  all  matters  of  government,  but  only 
such  action  with  regard  to  the  local  affairs  of  corpora- 
tions. The  decisions  of  the  courts  show  that  in  the 
opinion  of  the  judges  there  is  no  very  clear  line  of 
demarcation  between  matters  of  general  interest  and 
local  affairs.  The  courts  regard  as  unconstitutional, 
acts  which  they  regard  as  special  relative  to  many 
matters  which,  from  the  point  of  view  of  other 
branches  of  the  law,  are  regarded  as  of  interest  to  the 
state  as  a  whole  rather  than  local  in  character.^  The 
courts  have  held  also  that  the  legislature  may,  not- 
withstanding the  prohibition  to  interfere  by  special 
act  or  otherwise  with  the  affairs  of  a  particular  cor- 
poration, form  by  special  act  a  new  corporation  to 
which  certain  matters  attended  to  by  the  old  corpora- 
tion may  be  transferred,  and  that  in  so  doing  the  legis- 
lature violates  no  constitutional  provision.^ 

At  the  same  time,  a  number  of  cases  have  been 

'  See  Commonwealth  vs.  Patten,  88  Pa.  St  ,  258;  Board  of  Freeholders  vs. 
Buck,  51  N.  J.  Law,  155. 

^See  People  vs.  Draper,  15  New  York,  532,  which  held  that  the  legislature 
might  provide  for  the  state  appointment  of  police  commissioners  who  were  to 
have  jurisdiction  over  a  new  district  to  which  the  police  powers  of  the  city 
were  to  be  transferred  ;  see  also  Wilson  vs.  Board  of  Trustees,  133  111.,  443, 
which  held  that  the  legislature  might,  notwithstanding  the  prohibition  of 
special  legislation  contained  in  the  constitution,  provide  by  special  act  for  the 
new  Chicago  drainage  district. 


LOCAL  CORPORATIONS.  177 

decided  with  regard  to  these  constitutional  provisions 
which  indicate  that  the  courts  have  attempted,  at  any 
rate,  to  distingfuish  between  local  affairs  and  state 
affairs.  Thus,  for  example,  a  number  of  cases  have 
come  up  relative  to  what  are  corporate  officers  and 
corporate  powers,  where  the  constitution  has  provided 
that  the  legislature  shall  not  grant  the  power  to  levy 
taxes  for  corporate  purposes  to  other  than  corporate 
of^cers.  Here  the  courts  have  held  that  the  attempt 
to  give  powers  of  taxation  for  levee  and  drainage 
purposes  to  private  corporations  is  a  violation  of  the 
constitution/  In  the  same  way,  it  has  been  held  that 
parks,  from  this  and  also  other  points  of  view,  are  to 
be  regarded  as  local  affairs.^ 

The  question  has  also  arisen  as  to  whether  police 
matters  are  local  matters,  and  it  has  generally  been 
held,  though  not  without  conflict,  that  they  are  to  be 
regarded  as  state  rather  than  local  matters."^  Even 
where  the  constitution  provides  that  local  offfcers 
shall  be  locally  selected,  the  legislature  is  permitted 
to  provide  for  a  central  appointment  of  municipal 
police  commissioners.* 

A  word  perhaps  ought  to  be  said  with  regard  to 
the  method  of  limiting  the  power  of  the  legislature 
to  pass  special  legislation  relative  to  the  local  affairs 
of  cities  provided  by  the  constitution  of  New  York. 

'  Harward  vs.  St.  Clair  and  Monroe  Levee  etc.  Company,  51  111.,  130. 

-See  People  vs.  The  Mayor,  51  111.,  17  ;  People  vs.  Detroit  Common  Coun- 
cil, 28  Mich.,  22S  ;  see  also  People  vs.  Hurlbut,  24  Mich.,  44. 

^  People  z/j.  Kolsem,  130  Ind.,  434  ;  Commonwealth  vs.  Plaisted,  148  Mass., 
375  ;  State  z'.f.  Hunter,  38  Kan.,  578;  Mayor  vs.  State,  15  Md..  376;  State 
vs.  Leavey,  22  Neb.,  454;  Redell  vs.  Moores,  63  Neb.,  219;  Newport  vs. 
Hortnn,  22  R.  I.,  196. 

*See  People  vs.  Mahaney,  13  Mich.,  481  ;  but  see  People  vs.  Albertson, 
55  N.  Y.,  50. 


178  LOCAL  ADMINISTRATION. 

This  constitution  provides  that  a  special  act,  which  is 
an  act  that  affects  less  than  all  of  the  cities  of  one  of 
the  three  classes  of  the  cities  in  the  state,  must  be 
submitted  to  the  authorities  of  the  cities  which  it 
afTects,  and  if  it  does  not  receive  their  approval,  shall 
be  passed  over  again  by  the  legislature  before  it  is 
submitted  to  the  governor.  This  method  of  limiting 
the  control  of  the  legislature  over  local  corporations 
has  been  successful  in  preventing  a  great  deal  of  the 
most  objectionable  kind  of  special  legislation.  It 
has  not,  however,  prevented  the  passage  by  the  legis- 
lature of  special  acts  which  have  been  regarded  as 
of  great  importance  by  the  party  in  control  of  the 
legislature. 


CHAPTER  II. 

HISTORY     OF     RURAL     LOCAL     ADMINISTRATION      IN 
THE    UNITED    STATES. 

/. — History  of  rural  administration  in  England  to 

the  1 8th  ce7itury. 

I.  The  sheriff. — The  character  of  the  English  sys- 
tem of  local  government  was  fixed  by  the  Norman 
kings.  The  absolutism  of  the  Norman  government 
reduced  all  classes  of  the  inhabitants  to  complete 
submission  to  the  crown. ^  In  each  of  the  districts 
into  which  the  kingdom  was  divided,  namely,  the 
counties  or  shires,  were  placed  officers  originally 
known  as  vice  comites,  and  later  as  sheriffs,  who  were 
appointed  and  removable  by  the  crown,  and  who  were 
to  attend  to  all  administrative  business  to  be  trans- 
acted within  the  district  over  which  they  had  jurisdic- 
tion.^ The  sheriffs  were  always  unpopular  officers  ; 
they  were  therefore  gradually  stripped  of  their  powers 
and  a  system  of  administration  established,  which  was 
more  popular  in  character.  But  before  this  was  done, 
the  strong  centralized  administration  of  the  Normans 

'  Stubbs,  Constitutional  History  of  England,  i.,  pp.  257-259;  note  i,  260; 
338,  Cf.  Goodnow,  "Local  Government  in  England"  in  Political  Science 
Quarterly,  ii.,  638. 

^Stubbs,  op.  cit.,  i.,  276;  c/.,  P.  S.  Q.,  ii.,  639. 

179 


I  So  LOCAL  ADMLNLSTRATION. 

had  consolidated  the  people  of  England  into  a  nation. 
This  was  accomplished  in  England  much  sooner  than 
on  the  Continent.  As  a  result  of  this  centralization, 
autonomous  communities  had  no  opportunity  to  de- 
velop, and  though  the  administrative  system  later 
became  really  quite  decentralized,  the  local  areas  re- 
mained simply  administrative  districts  without  juristic 
personality  and  with  no  affairs  of  their  own  to  attend 
to, — districts  in  which  royal  officers  attended  to  all 
administrative  business.  This  prefectoral  adminis- 
tration of  the  sheriffs  lasted  from  the  time  of  the 
Conquest  to  about  the  reign  of  Richard  II.,  when 
changes  were  made  which  reduced  the  sheriff  to  the 
position  of  a  ministerial  officer  of  the  royal  courts, 
which  had  sprung  up  in  the  meantime,  a  returning 
officer  for  elections,  and  a  conservator  of  the  peace.^ 
These  changes  are  to  be  found  in  the  establishment 
of  the  office  of  the  justice  of  the  peace.^ 

2.  The  justice  of  the  peace. — To  the  justice  of  the 
peace  were  given  most  of  the  powers  of  the  sheriff. 
The  justices  further  gained  control  of  the  parish  ad- 
ministration, which  sprang  up  in  the  times  of  the 
Tudors  in  connection  with  the  ecclesiastical  organiza- 
tion, and  in  their  courts  of  quarter  sessions  acted  as 
the  county  administrative  authority.  They  were 
finally  by  far  the  most  important  officers  in  the 
localities,  discharging  both  administrative  and  judicial 
functions  and  having  under  their  direction  almost  all 
the  other  officers  in  the  localities. 

The  system,  whose  whole  tone  was  given  by  the 
justice  of  the  peace,  was  eventually  much  more  de- 

'See  Anson,    The  Law  of  the  Constituiion,  vol.  ii.,  p.  236. 

'34  Edward  III.,  chap,  i.,  <-/.,  P.  S.  Q.  ii.,  644,  and  authorities  cited. 


RURAL  LOCAL  ADMINISTRATION.  i8i 

centralized  than  the  prefectoral  system  of  the  sheriffs,^ 
All  the  officers  were  resident  in  the  localities  in  which 
they  acted.  Most  of  them,  it  is  true,  were  appointed 
directly  or  indirectly  by  the  central  government  and 
could  be  removed  by  it.  But  the  facts  that  they 
received  no  salary,  though  service,  as  a  rule,  was  often 
obligatory  and  always  arduous,  and  that  they  were 
chosen  from  the  well-to-do  classes,  made  the  personnel 
of  the  service  ultimately  very  independent  and  kept 
it  from  falling  into  bureaucratic  ways.  For  the  threat 
of  dismissal  from  office  had  little  terror  for  a  justice 
of  the  peace.  Dismissal  meant  relief  from  arduous 
service  and  not  the  loss  of  the  means  of  livelihood. 
The  system  thus  in  the  end  secured  a  high  degree 
of  local  self-government.  The  independence  of  the 
justices  brought  it  about  that  the  control  over  their 
actions  which  could  be  exercised  by  the  central 
administration  amounted  finally  to  nothing.  To 
provide  for  some  sort  of  central  control,  the  statutes 
of  parliament  regulating  the  powers  and  duties  of 
the  justices  had  to  descend  into  the  most  minute 
details.  That  the  justices  acted  in  accordance  with 
these  detailed  statutes  was  insured  by  the  control 
given  to  the  royal  courts  over  their  action,  by  means 
of  which  the  courts  might,  on  an  application  of  any 
person  aggrieved  by  the  action  of  justices,  force 
them  to  act  as  the  law  required  or  else  quash  their 
illegal  action, 

'  In  the  earlier  periods  of  the  history  of  the  office,  the  office  of  justice  of  the 
peace  was  a  part  of  a  highly  centralized  administrative  system.  Beard,  "  The 
Office  of  Justice  of  the  Peace,"  etc..  Col.  Univ.  Studies,  etc.,  vol.  xx.,  p.  I. 


i82  LOCAL  ADMINISTRATION. 

II. —  The  development  of  the  system  m  the  Utiited  States. 

I.  The  three  original  forms  of  local  administra- 
tion.— The  justice  of  the  peace  system  was  in  full 
force  at  the  time  of  the  British  colonization  of  North 
America.  It  is  only  natural  that  its  main  features 
should  characterize  the  original  system  of  American 
local  administration.  We  find,  however,  three  pretty 
distinct  forms  of  local  administration  in  the  different 
colonies :  one  in  the  New  England  colonies,  one  in 
the  middle  colonies,  and  a  third  in  the  southern 
colonies.  The  main  distinction  between  these  three 
forms  is  to  be  found  in  the  relative  position  which 
was  assigned  to  the  areas  adopted  for  the  purposes 
of  administration,  namely,  the  town  and  the  county. 
In  New  England,  while  the  county  was  recognized,^ 
it  was  not  nearly  so  important  as  the  town.  There 
are  several  reasons  why  such  an  important  position 
was  given  to  the  town  in  the  New  England  colonies. 
These  colonies  were  settled  mainly  by  persons  who 
had  left  England  for  the  purpose  of  enjoying  freedom 
of  religious  worship.  They  came  over  here  in  many 
instances  in  religious  congregations,  and  when  they 
settled,  settled  in  the  neighborhood  of  the  church 
which  they  established.  Furthermore  the,  relations  of 
the  settlers  with  the  Indians  were  quite  commonly  hos- 
tile, and  it  became  necessary  for  them  to  group  them- 
selves rather  closely  together  for  purposes  of  defence.^ 

'  Howard  in  his  Local  Constitutional  History  of  the  United  States,  vol.  i.,  320, 
says  that  the  county  was  formed  in  Rhode  Island  in  1703,  but  was  compara- 
tively unimportant.  In  Massachusetts,  however,  it  is  found  as  early  as  1635. 
See  9  Gray,  Mass.,  512,  note. 

'  For  example,  the  Massachusetts  legislature  forbade  at  one  time  the  building 
of  dwellings  distant  more  than  half  a  mile  from  the  meeting-house  in  any  new 
"  plantation."     See  9  Gray,  Mass.,  511,  citing  Colonial  Records,  vol.  i.,  p.  157. 


RURAL  LOCAL  ADMINISTRATION.  183 

In  the  middle  colonies,  also,  we  find  both  the  town 
and  the  county.  The  functions  of  administration 
were  quite  equally  distributed  between  them,  or  else 
the  town  was  less  important  than  the  county.  The 
latter  was  especially  true  of  Pennsylvania,  where  the 
town  was  not  established  until  the  latter  part  of 
the  1 8th  century,  and  after  its  establishment  was  much 
less  important  than  the  New  England  town.^  The 
existence  of  the  town  in  one  of  the  middle  colonies  at 
any  rate,  viz.,  New  York,  is  due  partly  to  New  England 
influences,  which  were  very  marked,  for  example,  in 
the  eastern  part  of  the  colony;  partly  also  to  the  fact 
that  the  attempt  was  made  during  the  Dutch  period 
to  establish  under  the  control  of  the  Patroons,  as  they 
were  called,  colonies  which,  under  the  English  occupa- 
tion, developed  into  manors,  and  which  played  some- 
what the  same  role  in  administration  as  the  New 
E norland  town. 

In  the  south,  social  and  geographical  conditions 
were  such  as  to  discourage  the  development  of  the 
town  during  the  colonial  period,  and  to  encourage  the 
system  of  county  administration.  Thus  the  south 
was  in  large  part  settled  by  persons  who  had  received 
large  grants  of  land  from  the  crown  of  England,  and 
who  came  over  here  with  the  idea  of  bettering  their 
economic  condition.  This  resulted  in  the  establish- 
ment of  large  plantations.  The  development  of  such 
plantations  was  favored  by  the  geographical  character 
of  the  country  in  which  there  were  many  navigable 
rivers  entering  quite  far  into  the  interior.  Further- 
more, the  relations  with  the  Indians  were  not  as 
hostile  as  in    New   England,  and   therefore  did    not 

'  Howard,  op.  cit.,  i.,  3S5. 


1 84  LOCAL  administration: 

necessitate  the  oratherino-  tocrether  in  small  districts 
of  the  settlers. 

2.  The  early  American  county. — The  county  was 
found  in  all  the  American  colonies  with  the  exception 
perhaps  of  some  of  the  New  England  colonies,  where, 
if  it  existed  at  all,  it  existed  in  a  very  rudimentary 
form.  Wherever  the  county  did  exist  as  an  adminis- 
trative district,  the  county  authority  was,  as  in 
England,  the  court  of  sessions  of  the  justices  of  the 
peace  who  were  appointed  by  the  governor  of  the 
colony.^  By  the  side  of  the  justices  of  the  peace  was 
the  sheriff,  occupying  a  position  similar  to  that  of 
the  English  sheriff  of  the  same  period.  That  is,  the 
sheriff  was,  in  our  colonial  period,  a  conservator  of 
the  peace,  the  returning  officer  for  elections,  and  the 
ministerial  officer  of  the  courts.  He  was  appointed 
also  by  the  governor.^  In  the  court  of  sessions  were 
centred  about  all  the  administrative  duties  relatino- 
to  the  county.  In  this  court  the  justices  appointed 
some  person  to  be  county  treasurer,  attended  to  the 
county  finances  and  supervised  the  administration  of, 
the  poor-law.  Acting  separately,  they  had  charge  of 
police  and  highway  matters,  and  directed  the  acts 
of  a  orreat  number  of  subordinate  officers  who  had 
duties  relative  to  these  matters. 

The  first  change  to  be  noticed  in  the  county  organ- 
ization is  the  substitution  of  officers  elected  by  the 
people  of  the  county  for  the  appointed  justices.  This 
movement  began  in  New  York  certainly  as  early  as 
1 69 1,  probably  as  early  as  1683.^     In  1691  an  officer, 

'  For  New  York,   see  Documents  delating  to  the  Colonial  History  of  New 
York,  iv.  25;  cf.,  Howard,  i.,  406. 
'See  Brodhead,  History  of  New   York,  vol.  i.,  63,  and  authorities  cited. 
^See  Laws  of  1691,  chapter  vi.     On  November  2,  1683,  a  law  was  passed 


RURAL  LOCAL  ADMLNISTRATLON.  185 

called  a  "  supervisor,"  was  to  be  elected  in  each  town. 
His  name  comes  from  the  fact  that  when  these  offi- 
cers from  each  of  the  towns  in  the  county  were  as- 
sembled together,  they  formed  the  county  board,  and 
were  "  to  supervise  and  examine  the  publick  and 
necessary  charge  of  each  county."^  The  motive  for 
this  change  was  probably  to  provide  for  the  coexist- 
ence of  local  representation  with  local  taxation,  since 
the  main  duties  of  the  first  board  of  supervisors  were 
relative  to  the  fiscal  administration  of  the  county.'"^ 
The  justices  still  retained  important  functions  in  other 
administrative  branches,  such  as  highways.^ 

A  little  later  the  elective  system  was  introduced 
into  Pennsylvania,  but  in  a  somewhat  different  form, 
there  being  no  town  representation  on  the  county 
board.  In  1724  provision  was  made  for  the  election 
by  the  people  of  the  county  of  three  commissioners 
who  were  to  manage  the  fiscal  affairs  of  the  county."* 
Sheriffs  were  also  elected  by  the  people  in  Penn- 
sylvania from  an  early  time.^  This  change  in  the 
county  organization  was  destined  to  have  a  profound 

providing  that  there  should  be  elected  in  each  town  persons  "  for  the  supervise- 
ing  of  the  publique  affaires  and  charge  of  each  respective  towne  and  county," 
see  Colonial  Laws,  vol.  i.,  p.  131.  But  as  the  assembly  in  New  York  previous 
to  1691  was  an  almost  extra-legal  body,  it  is  safer  to  place  the  introduction  of 
the  elective  principle  in  county  organization  at  1691. 

'  This  system  was  abolished  ten  years  later  by  the  Laws  of  1701,  chapter  96, 
but  was  reestablished  by  a  law  of  June  ig,  1703.  This  accounts  for  the  mis- 
take which  is  so  commonly  made  of  assigning  1703  as  the  date  of  the  introduc- 
tion of  the  supervisor  system  in  New  York. 

*See  New  York  Law  of  November  i,  1722,  where  it  is  said  :  "  Whereas  by  that 
means,"  i.  e.,  the  method  of  voting  provided  by  the  act  of  1703,  "  the  inhabi- 
tants of  several  manors,  liberties,  and  precincts,  which  bear  a  considerable 
share  of  the  county  rate,  have  not  the  liberty  of  chusing  their  own  supervisors, 
be  it  enacted"  that  they  may  vote  in  the  town  adjoining  the  manor,  etc. 

^  Cf.  Howard,  i.,  362. 

*  Ibid.,  i.,  382.  ^  Ibid.,  i.,  382,  and  authorities  cited. 


1 86  LOCAL  ADMINISTRATION. 

influence  on  the  subsequent  development  of  local  ad- 
ministration in  the  United  States.  As  Howard  well 
says  ^ : 

To  New  York  first  and  next  to  Pennsylvania  belongs  the 
honor  of  predetermining  the  character  of  local  government  in  the 
West.  But  if  New  York  was  first  to  return  to  the  ancient  prac- 
tice of  township  representation  in  the  county  court,  it  was  in 
Pennsylvania  that  the  capabilities  of  the  independent  county 
were  first  tested.  Here  the  principle  of  election  to  county  offices 
was  carried  farther  than  it  was  ever  carried  in  England."  New 
York  is  the  parent  of  the  supervisor  system,  Pennsylvania  is  the 
originator  of  the  commissioner  system. 

The  elective  system  thus  introduced  into  New 
York  and  Pennsylvania  has  been  adopted  in  almost 
every  state,  and  has  been  extended  to  almost  all  the 
county  offices,  not  only  the  original  county  offices, 
but  also  those  which  the  increase  of  the  work  of  ad- 
ministration has  caused  to  be  provided. 

3.  The  early  American  town. — While  we  find  in  the 
early  American  county  an  organization  similar  to  that 
of  the  English  county  of  the  seventeenth  and  eigh- 
teenth centuries,  in  the  early  American  town  we  do 
not  find  an  organization  which  resembles  very  closely 
the  English  parish  of  the  same  period.  The  town  is 
not  reofarded  as  the  lesfal  successor  of  the  Encjlish 
parish  but  is  an  American  creation,'^  and  its  develop- 
ment has  been  quite  different  in  different  sections. 
In  New  England  it  is  older  than  the  county,"*  in  the 
middle  colonies  it  seems  to  be  a  later  creation. 

'  Cf.  Howard,  i.,  387. 

'^  It  is,  however,  to  be  noted  that  the  New  York  Law  of  1683,  above  referred 
to,  provided  that  the  county  treasurer  should  be  elected  by  the  voters  of  the 
county. 

^Morey  vs.  Town  of  Newfane,  8  Barbour,  N.  Y.,  645,  648. 

*  We  find  it  in  this  section  as  early  as  1630;  see  g  Gray,  Mass.,  511. 


RURAL  LOCAL  ADMINLSTRATION.  187 

From  the  very  beginning,  the  principle  of  election 
by  the  voters  of  the  town  seems  to  have  been  the 
method  of  filling  all  town  offices,  and  in  the  adoption 
of  this  principle  is  to  be  found  the  great  point  of 
difference  between  American  town  organization  and 
the  English  parish  organization,  and  between  the 
position  of  the  American  and  that  of  the  English 
justices  of  the  peace.  For  in  the  English  parish  the 
justice  of  the  peace  ultimately  appointed  almost  all 
of  the  parish  officers  and  directed  them  how  to  act. 
The  powers  of  the  American  justice  of  the  peace  over 
the  officers  of  the  town  were  also  much  less  extensive 
than  were  those  of  the  English  justices  over  parish 
officers. 

In  the  New  England  town  the  principal  town 
officers  were  elected  by  the  town  meeting,  /.  e.,  the 
assembly  of  the  political  people  of  the  town,  which 
determined  also  what  the  town  should  do.  The 
resolutions  of  the  town  meeting  were  executed  by  the 
town  officers.  There  were  also  almost  innumerable 
town  officers,  each  one  of  whom  attended  to  some 
particular  matter  affecting  the  welfare  of  the  town. 
Some  of  these  officers  were  elected  at  the  town  meet- 
ing ;  some  were  appointed  by  the  selectmen, — the 
principal  town  officers.'  The  existence  of  such  a 
number  of  officers  was  necessary  because  salaries 
were  not  paid  and  because  service  was,  as  a  rule, 
obligatory.  For  no  man  could  be  expected  without 
compensation  to  give  up  a  large  share  of  his  time  to 
the  performance  of  public  duties.  In  New  York  the 
principal  officers  of  the  town  in  1691  were  the  super- 
visor, two  assessors,  a  constable,  a  collector,  a  clerk, 

'  Howard,  i.,  pp  78,  SS,  96. 


i88  LOCAL  ADMLNLSTRATLON. 

highway  commissioners  or  surveyors,  and  overseers 
of  the  poor.  These  officers  were,  for  the  most  part, 
elected  as  in  Massachusetts  by  the  town  meeting. 
This  body  in  New  York  had  functions  to  discharge 
similar  to  those  discharged  by  the  Massachusetts 
town  meeting,  with  the  difference  that  its  sphere  of 
action  was  not  so  extended.  For  the  county  did  a 
great  deal  of  the  work  in  New  York  that  was  attended 
to  by  the  town  in  New  England.^  In  Pennsylvania, 
we  find  in  the  town  after  its  establishment  two  over- 
seers of  the  poor,  appointed  by  the  justices,  and  two 
supervisors  of  highways  elected  by  the  people  of  the 
town.  As  the  county  was  much  more  important  in 
Pennsylvania  even  than  in  New  York,  there  was  very 
little  for  the  town  to  do.  It  was  more  in  the  nature 
of  an  administrative  division  of  the  county  than  a 
local  organization  with  its  own  duties  to  perform; 
therefore  the  town  meeting  was  not  present  in  the 
original  Pennsylvania  plan  of  local  administration.^ 

'  See  N.  Y.  L,,  June  19,  1703.  *  Howard,  i.,  385. 


CHAPTER  III. 

RURAL  LOCAL   ADMINISTRATION   IN  THE  UNITED    STATES 

AT  THE  PRESENT  TIME. 

/. — The  county. 

I.  The  position  of  the  county. — The  present  position 
of  the  county  depends  on  the  general  character  of 
the  system  of  local  government  adopted  in  the  par- 
ticular state.  Thus,  in  New  England/  where  the 
town  is  practically  supreme,  the  county  has  very  little 
importance.  It  is  generally  little  more  than  an  ad- 
ministrative district  for  the  purposes  particularly  of 
judicial  administration,  although  it  would  seem  to  be 
increasing  in  importance.  In  a  number  of  the  states  it 
has  none  of  the  characteristics  of  a  corporation,  and 
therefore  may  not  either  sue  or  be  sued.^  It  has  not, 
further,  as  yet  obtained  a  county  authority  of  any 
independence  which  is  separate  from  other  depart- 
ments of  the  state  government.  Thus,  in  Connecticut 
and  New  Hampshire  the  county  is  under  the  control 
of  the  representatives  to  the  legislature  of  the  towns 
in  the  county,'^  while  in  Vermont  the  most  important 

'  Except  Massachusetts,  which  does  not  belong  to  New  England  from  this 
point  of  view. 

'See  Ward  vs.  Hartford  County,  12  Conn.,  404. 

^See  General  Statutes  of  Connecticut,  1902,  sections  1742-1756;  General 
Statutes  of  New  Hampshire,  1901,  p.  123.  On  the  general  subject  of  the 
county  administration  in  New  England,  see  Howard,  i.,  pp.  459,  464.  See  also 
Goodnow's  Comparative  Administrative  Law,  i.,  p.  185. 

189 


I90  LOCAL  ADMINISTRATION. 

administrative  functions  in  the  county  are  discharged 
by  the  assistant  judges  of  the  ordinary  county  court.^ 
Insofar  as  a  separate  county  authority  has  developed 
in  New  England,  as,  for  example,  the  commissioners 
who  are  found  in  Connecticut  and  New  Hampshire, 
the  Pennsylvania  rather  than  the  New  York  form  is 
the  model  that  is  being  copied.  The  rule  as  to  the 
filling  of  the  other  officers  in  the  New  England  county 
is  not  at  all  uniform;  in  some  cases  the  people  of  the 
county  electing  such  officers,  in  others  some  other, 
sometimes  a  state  authority,  having  the  right  to 
appoint  them.  In  all  other  sections  of  the  United 
States,  however,  not  only  is  the  county  important,  but 
there  is  also  a  county  authority  of  large  powers. 

2.  The  county  atithority. — As  a  general  thing, 
the  county  authority  is  elected  by  the  people  of  the 
county;  the  only  exception  is  that  in  some  of  the 
southern  states,  within  recent  years,  the  legislature, 
on  account  of  the  fear  of  negro  domination,  has  pro- 
vided that  the  members  of  the  county  authority  shall 
be  appointed  by  the  central  government  of  the  state.' 
Where  the  principle  of  election  has  been  adopted,  it 
is  usually  extended  to  most  county  officers.  Thus, 
the  sheriff,  the  county  clerk,  the  county  treasurer,  the 
register  or  recorder  of  deeds,  the  district  attorney, 
and  the  county  superintendent  of  the  poor — where 
that  officer  is  to  be  found — are  generally  elected  by 
the  people  and  not  appointed  by  the  central  adminis- 
tration of  the  state  or  by  the  county  authority,  as  was 
the  case  in  the  original  English  and  American  sys- 
tem.    In  many  cases  the  election  of  these  officers  by 

'  See  Vermont  Statutes,  1894,  section  2S8r,  et  seq. 

'See  "  Local  Self-Government  in  the  Southwest,"  J.  H.  U.  S.,  xi.,  p.  473. 


RURAL  LOCAL  ADMINLSTRATLON.  191 

the  people  is  prescribed  by  the  constitution  of  the 
state,-^ 

The  elective  county  authority  is  of  two  types, 
namely,  the  commissioner  type  and  the  supervisor 
type.  The  former  provides  for  three  commissioners 
generally  elected  by  the  people  of  the  county  at 
large.  Sometimes  we  find  the  county  divided  into  three 
districts,  each  one  of  which  elects  a  commissioner.^ 
This  type,  which  it  will  be  remembered  originated  in 
Pennsylvania,  prevails  in  the  south,  where  the  ap- 
pointed justice  of  the  peace  has  not  been  provided, 
and  in  most  of  the  western  states.^  The  supervisor 
type,  which  provides  for  a  representative  on  the 
county  board  of  each  of  the  towns  into  which  the 
county  is  divided,  originated,  it  will  be  remembered,  in 
New  York,  and  is  to  be  found  in  several  of  the  north- 
western states,  such  as  Michigan  and  Wisconsin.* 

The  supervisor  type,  while  not  by  any  means  so 
widely  distributed  as  the  commissioner  type,  has  the 
advantage  of  securing  local  representation,  and  is 
believed  by  many  to  assure  a  greater  sense  of  popular 
responsibility,  on  the  part  of  members  of  the  county 
authority.  It  is  significant  that  one  of  the  most 
recent  laws  relative  to  the  government  of  counties, 
namely,  the  Indiana  law  of  March  3,  1899,  changed 
the  commissioner  system,  by  placing  by  the  side  of 
the  county  commissioners  a  county  council  of  seven 
members,  four  of  whom  are  elected  by  separate 
council  districts.^    The  Indiana  law,  to  which  attention 

'  See  Stimson,  op.  cit.,  p.  47,  section  210  B. 

"  Howard,  i.,  pp.  439,  442. 

^  Ibid,  i.,  439,  443,  465,  and  468. 

*Ibid. 

'Sparling,  "  Responsible  County  Government,"  P.  S.  Q.,  xv'.,  p.  437. 


192  LOCAL  ADMLNISTRATJON. 

has  just  been  called,  is  interesting  also  as  indicating 
a  tendency  towards  a  further  modification  of  the 
general  scheme  of  county  government,  which  has 
existed  for  so  long  a  time  in  this  country  with  so  little 
change.  It  is  an  instance  of  the  application  to  county 
government  of  the  principle  of  the  separation  of 
powers  which  has  had  such  an  influence  on  the 
organization  of  the  state  and  city  governments.  To 
the  new  county  authority,  the  county  council,  in 
Indiana  have  been  given  most  of  the  financial  powers, 
while  the  county  commissioners  are  confined  to  the 
exercise  of  executive  powers.  While  the  Indiana  law 
of  1899  is  an  exceptional  instance  of  the  application 
to  distinctly  rural  county  government  of  the  principle 
of  the  separation  of  powers,  there  are  a  number  of 
instances  of  such  application  by  special  legislation  to 
counties  which  embrace  within  their  limits  laro-e  cities.^ 

But  apart  from  these  exceptional  instances  of  the 
attempt  to  disintegrate  the  county  authority,  what  are 
known  as  county  affairs  are,  regardless  of  their  char- 
acter, entrusted  to  a  single  county  authority.  Under 
the  head  of  county  affairs  are  to  be  included  the 
county  finances, — including  public  buildings  and  the 
care  of  the  expenditures  for  services  attended  to  by 
other  county  officers,  such  as  superintendents  of  the 
poor,  county  clerks,  etc., — and  the  care  of  bridges  and 
roads. 

In  addition  to  attending  to  county  affairs,  the  county 
authority  has  powers  which  only  indirectly  affect  the 
county  but  are  of  interest  to  the  state  as  a  whole. 

'See,  for  example,  the  County  President  of  Cook  County,  Illinois,  ibid. 
In  the  county  of  Kings,  in  the  state  of  New  York,  there  was  formerly  a  super- 
visor-at- large  who  presided  over  the  board  of  supervisors,  and  discharged  a 
number  of  executive  functi'ins. 


RURAL  LOCAL  ADMINISTRATLON.  193 

Thus  the  county  authority  has  often  to  pubHsh  the 
laws  and  election  notices  for  state  elections,  acts  as 
the  county  board  of  canvassers  for  state  elections, 
draws  up  in  some  cases  the  lists  of  grand  jurors, 
and  discharges  duties  mainly  of  a  financial  character 
in  relation  to  the  state  military  affairs.^ 

But  the  characteristic  and  most  important  powers 
of  the  county  authority  are  those  relating  to  the  county 
finances.  For  the  expenses  of  many  matters  affecting 
the  state  as  a  whole  and  not  the  county,  are  devolved 
by  law  upon  the  county.  Such,  for  example,  are 
many  expenses  connected  with  the  administration  of 
justice  which,  though  the  courts  are  recognized  now 
as  state  rather  than  local  agencies,  are  generally  borne 
by  the  county.  This  is  in  accordance  with  the  old 
English  idea  of  devolving  the  expense  of  almost  every 
administrative  service  upon  the  counties  or  the  par- 
ishes. Such  expenses  are  not  optional  with  the  county 
authority  but  are  what  are  known  as  county  charges, 
and  may  be  enforced  in  the  proper  way  by  the  courts. 

We  do,  however,  find  certain  differences  in  the  dif- 
ferent states  as  to  the  powers  of  the  county  authority 
relative  to  other  county  officers  acting  within  the 
county.  The  usual  rule  would  appear  to  be  that  the 
county  authority  may  not  be  regarded  as  responsible 
for  the  actions  of  the  other  officers  in  the  county  who 
are  elected  by  the  people.  At  the  same  time  we  do 
find  instances  of  an  attempt  to  concentrate  the  whole 
responsibility  for  county  administration  in  the  county 
authority." 

'For  example,  see  Morehouse's  Supervisor's  Manua/CN.  Y.),  115,  347,  352, 
355.  363. 

'  Thus,  for  example,  in  Nebraska  the  county  authority  may  hear  complaints 
against  any  county  officer  and  may  remove  him  for  official  misdemeanors  which 


194  LOCAL  ADMINISTRATION. 

Again,  there  Is  a  difference  in  the  relations  of  the 
county  authority  to  the  lesser  areas  of  administra- 
tion— namely,  the  towns  or  townships.  The  usual 
rule  would  seem  to  be  that  the  county  authority  has 
no  control  over  the  town  administration.  In  some  of 
the  states,  however,  as,  for  example.  New  York,  the 
county  authority  has  considerable  supervisory  power 
over  the  town  administration.  Thus,  in  this  state,  the 
towns  do  not  possess  the  taxing  power,  but  all  the 
town  taxes  are  to  be  voted  by  the  county  authority.^ 

3.  State  control  over  counties. — In  few,  if  any,  in- 
stances, are  acts  of  the  county  authority  subjected  to 
a  central  administrative  control.  Such  control  as  is 
exercised  over  them  by  the  central  state  government 
is  exercised  by  the  state  legislature,  which,  through  its 
power  of  detailed  legislation  sometimes  special  in 
character,  may  seriously  interfere  with  the  freedom 
of  action  of  the  county  authority.  A  good  example 
of  such  legislative  control  is  to  be  found  in  the  case  of 
the  borrowing  power.  In  our  early  history,  the  ordi- 
nary rule  being  that  a  county  authority  might  not,  as 
the  result  of  the  exercise  of  its  ordinary  powers,  bor- 
row money,  resort  to  the  legislature  was  always 
necessary  in  case  it  was  desirable  for  the  county  to 
pay  for  an  extraordinary  expenditure  from  the  pro- 
ceeds of  bonds. 

The  very  general  adoption  of  constitutional  pro- 
visions prohibiting  the  passage  of  special  legislation, 
and  limiting  the   debt-making  capacity  of   counties, 

are  defined  in  the  statutes.  It  may  remove  for  this  cause  the  county  officer, 
whether  he  has  been  elected  by  the  people  or  appointed  by  the  county  au- 
thority. Compiled  Statutes  of  Nebraska,  1889,  369;  compare  Howard,  i.,  445. 
^  E.g.,  N  Y.  L.,  1892,  chapter  682,  section  12,  p.  569;  L.,  1890,  chapter 
568,  section  139. 


RURAL  LOCAL  ADMLNISTRATLON.  195 

has,  however,  brought  it  about  that  the  control  of  the 
legislature  over  the  acts  of  county  authorities  has 
been  seriously  diminished.  The  former  legislative 
control  has  been,  particularly  in  the  case  of  the  ex- 
ercise of  the  power  to  borrow  money,  sometimes 
replaced  by  a  popular  control.  Debts  may  often  be 
incurred  only  as  the  result  of  a  popular  vote,  some- 
times a  vote  of  the  taxpayers.  Further,  there  is  a 
tendency  to  provide  a  central  administrative  control 
over  county  accounts.^ 

In  the  case  of  particular  county  officers,  there  is,  in 
a  number  of  instances,  a  central  administrative  con- 
trol. This  is  particularly  marked  in  the  case  of  the 
educational  administration,  and  the  administration  of 
public  charities  and  highways.^  Finally,  the  gov- 
ernor has  sometimes  the  right,  either  for  cause  or 
after  a  hearing,  to  remove  most  of  the  county  officers.^ 

//. — The  town. 

I.  The  position  of  the  town. — What  has  been  said 
relative  to  the  county  may  be  repeated  here ;  that  is, 
the  town's  importance  in  a  given  state  depends  on 
the  kind  of  local  o-overnment  we  find  within  that 
state.  Just  as  the  county's  importance  is  greatest  in 
the  south  where  the  town  does  not  exist,  so  the 
town's  importance  is  greatest  in  New  England  where 
the  county  has  no  administrative  importance.  Where- 
ever  the  town  has  any  importance,  it  is,  as  has  been 
shown,  a  corporation,  but  as  a  corporation  it  exhibits 

'  Supra,  p.  138. 

'See  Fairlie,   "State  Administration  in  New  York,"  P.  S.  Q.,  xv.,  p.  50; 
see,  also,  supra,  p.  140. 
'  Supra,  p.  103. 


396  LOCAL  ADMLNLSTRATLON. 

two  pretty  distinct  forms.  The  New  England  town 
often  approaches  in  character  the  municipal  corpora- 
tion proper  on  account  of  the  fact  that  it  often  dis- 
charges the  functions  in  other  parts  of  the  country 
discharged  by  the  city,  incorporated  town,  or  village. 
Outside  of  New  England,  the  town  or  township,  as  it 
is  sometimes  called,  is  but  a  ^^^^^-corporation  with 
the  limited  powers  and  liabilities  possessed  by  such 
an  oro^anization. 

2.  The  town  77teeting. — The  organization  of  the  town 
differs  in  about  the  same  way  as  its  corporate  ca- 
pacity. Thus  we  find  in  the  New  England  town  a 
town  meeting,  consisting  of  the  voters  of  the  town, 
which  both  elects  the  town  officers  and  determines, 
by  its  deliberations,  the  policy  of  the  town,  voting 
appropriations  and  levying  taxes.  Such  an  institu- 
tion is  also  found  in  some  of  the  states  like  New 
York,  which  have  adopted  the  supervisor  type  of 
county  authority.  The  sphere  of  action  of  the 
town  meeting  differs  considerably  in  different  states. 
Everywhere  it  has  jurisdiction  of  the  roads,  in  many 
cases  of  the  town  poor,  and  in  some  cases  of  the 
schools. 

3.  The  town  officers. — By  the  side  of  the  town 
meeting  we  find  a  series  of  town  officers.  These  are, 
in  the  first  place,  officers  who  represent  the  peculiar 
corporate  interests  of  the  town.  In  New  England 
they  are  the  selectmen  ;  in  New  York,  the  supervisor ; 
and  outside  of  these  districts,  usually  the  town  trustee. 
In  the  second  place,  there  is  a  series  of  officers  at- 
tending to  the  particular  branches  of  administration, 
sometimes  state  administration,  carried  on  in  the 
town.     Thus   we   find    assessors   and   collectors  for 


RURAL  LOCAL  ADMINLSTRATION.  197 

the  assessment  and  collection  of  both  the  state 
tax  on  property,  where  that  exists,  and  the  town 
taxes  ;  the  town  clerk,  who  keeps  the  records  of  the 
town  including  sometimes,  as  in  New  England,  the 
records  of  the  transfer  of  real  property ;  constables 
and  justices  of  the  peace  for  the  preservation  of  the 
peace  and  the  commitment  of  persons  charged  with 
crime  ;  commissioners  of  highways,  overseers  of  the 
poor,  and  school  and  health  officers.  In  New  Eng- 
land, the  tendency  is  to  combine  in  the  hands  of  the 
selectmen  some  of  the  functions  discharged  by  a 
number  of  these  officers  in  other  sections  of  the 
country. 

Outside  of  New  England  and  the  states  following 
the  New  York  plan,  we  do  not  find  a  town  meeting. 
In  the  states  not  making  provision  for  a  town  meet- 
ing, the  ofiicers  specially  charged  with  the  corporate 
affairs  of  the  town  attend  to  the  work,  other  than  the 
election  of  officers,  attended  to  by  the  town  meeting 
in  New  England.  There  is,  however,  a  tendency, 
even  in  the  town-meeting  states,  to  subject  the  actions 
of  such  officers  to  the  control  of  some  sort  of  a  town 
council.  This  town  council  is  the  real  town  authority 
in  a  number  of  states,^  and  often  has  to  audit  the  ac- 
counts of  other  town  officers.^  In  some  cases  this 
town  board  consists  of  town  officers,  as,  for  example, 
in  New  York,  or  of  persons  elected  for  this  purpose 
alone,  as  in  Indiana. 

What  has  been  said  with  reofard  to  the  central  state 
control  over  the  county,  may  mutatis  mutandis  be  re- 
peated here  as  to  the  town,  with  the  exception  that 

'  Howard,  i.,  i6S,  169.       The  new  Indiana  Law  of  1899  provided  such  a 
body  to  exercise  a  control  over  the  town  trustees.  "^  Ibid.,  172. 


198  LOCAL  ADMINISTRATLON. 

the  governor  does  not  possess  the  right  to  remove 
town  officers. 

In  New  England  very  generally  the  town  is  the 
school  district  and  the  officers  who  attend  to  the 
schools,  sometimes  known  as  the  school  committee, 
are  elected  at  the  town  meeting  and  occupy  towards 
it  about  the  same  position  occupied  by  other  town 
officers.  In  some  parts  of  the  south,  on  the  other 
hand,  the  schools  are  managed  by  the  county  author- 
ity as  a  part  of  its  general  functions  of  administration. 
Generally,  however,  we  find  a  special  administrative 
organization  for  the  schools  based  upon  the  special 
school  district,^  which  sometimes  not  only  manages 
the  schools,  but  has  its  own  financial  system  for  the 
purpose  of  raising  the  funds  necessary  to  carry  on  the 
schools.  This  is  the  rule  in  New  York.^  The  tend- 
ency at  the  present  time  is  said  to  be  away  from  the 
district  system  and  towards  vesting  the  control  of 
educational  matters  in  the  hands  of  a  higher  body, 
"  sometimes  the  town,  sometimes  the  county,  some- 
times the  state."  ^ 

'  Howard,  i.,  235. 

^  Fairlie,  The  Centralization  of  Administration  in  New  York  State,  p.  34; 
see  also  Orth,  Centralization  of  Administration  in  Ohio,  p.  34. 

^Webster,  Centralizing  Tendencies  in  State  Educational  A  dministration,  173; 
see  also  Rawles,  Centralizing  Tendencies  in  Administration  of  Indiana,  115. 


CHAPTER    IV. 

MUNICIPAL    ORGANIZATION    IN    THE    UNITED    STATES. 

/. — History  of  the  English  municipality  to  the  seven- 
teenth and  eighteenth  centuries} 

I.  Origin  of  the  borozigh. — According  to  the  Eng- 
lish method  of  permitting  the  locaHties  to  participate 
in  the  work  of  administration,  the  more  thickly  popu- 
lated districts  have  always  had  a  somewhat  peculiar 
ororanization.  The  oricjin  of  this  oeculiar  oreaniza- 
tion  is  to  be  found  in  the  errant  to  districts  with  a 
greater  than  average  population  of  a  series  of  privi- 
leges for  the  exercise  of  which  there  was  gradually 
formed  a  series  of  authorities  differing  in  many  re- 
spects from  the  authorities  in  the  rural  districts. 
These  privileges  were  known  as  the  firtJia  bnrgi  and 
the  court  leet. 

T\\Q  firma  burgi  vJdiS  the  lease  of  the  urban  district 
by  the  Crown  to  the  inhabitants.  From  the  very  be- 
ginning of  the  Norman  period,  the  inhabitants  of  the 
urban  as  well  as  of  the  rural  districts  owed  certain 
payments  or  services  to  the  Crown.  As  a  rule,  these 
payments  were  to  be  collected  by  the  sheriff,  as  the 
fiscal  representative  of  the  Crown  in  the  localities. 

'See  Gneist,  Self-Government,  etc.,  580-592. 
199 


200  LOCAL  ADMLNISTRATION. 

In  order  to  permit  of  the  more  easy  collection  of  such 
payments,  the  Crown  made  contracts  with  the  inhabi- 
tants of  the  urban  districts.  In  accordance  with  such 
contracts,  the  inhabitants  of  the  urban  districts  having 
the  firma  burgi  paid  the  Crown  a  fixed  sum,  which 
they  were  permitted  to  raise  among  themselves  in 
such  manner  as  they  saw  fit.  For  the  collection  of 
this  quota  there  was  provided  an  officer  called  the 
fermor  or  provost  or  mayor,  who  was  to  be  selected, 
as  a  rule,  by  the  urban  inhabitants,  their  selection 
being  subject  to  the  approval  of  the  Norman  ex- 
chequer, and  who  was  to  act  under  its  supervision. 

The  court  leet  was  the  privilege,  granted  to  the  in- 
habitants of  special  districts  or  to  the  lord  of  a 
given  manor,  to  hold  a  special  police  and  judicial 
court  when  the  inhabitants  of  the  district  were  ex- 
empted from  the  jurisdiction  of  the  ordinary  court, 
to  wit,  the  sheriff's  tourn.  This  privilege  was  granted 
by  the  Crown,  generally  in  the  case  of  the  urban 
districts,  in  return  for  a  sum  of  money.  Like  the 
firma  burgi,  it  soon  came  to  be  regarded  as  a  right. 
The  union  of  these  two  privileges  constituted  a 
municipal  borough.  The  burgesses,  meeting  in  court 
leet,  found  it  a  natural  and  easy  matter  to  assume 
such  other  functions  as  were  necessitated  by  the 
presence  of  a  large  number  of  persons  in  a  small  dis- 
trict. They  established  rules  as  to  participation  in  the 
court  leet  and  as  to  the  election  of  the  mayor  or  provost. 
The  general  rule  was  that  no  one  should  participate  in 
the  court  leet  who  did  not  pay  taxes,  was  not  a  house- 
holder, and  was  not  in  the  eyes  of  the  law  capable 
of  participating  in  the  administration  of  justice.  In 
the  quaint  language  of  the  period,  only  those  could 


MUNICIPAL  ORGANIZATION.  201 

be  members  of  the  court  leet  who  were  freemen 
householders,  paying  scot  and  bearing  lot ;  and  the 
formal  criterion  of  the  existence  of  these  qualities  in 
a  given  person  was  the  fact  that  he  had  been  sworn 
and  enrolled  in  the  court  leet.  This  body  had  thus  the 
ultimate  decision  as  to  the  qualifications  of  municipal 
citizenship. 

2.  Development  of  the  borough  council. — The  origi- 
nally simple  and  representative  organization  of  the 
borough  was  later  completely  changed  through  the 
acquisition  by  a  large  number  of  the  boroughs  of  the 
right  of  representation  in  Parliament,  which  was 
formed  in  the  time  of  Edward  I.  (1295).  The  quota 
of  the  borouofh  was,  after  the  formation  of  Parlia- 
ment,  fixed  by  that  body,  so  that  all  that  remained  to 
be  done  by  the  borough  in  the  financial  administra- 
tion was  to  assess  the  quota  assigned  to  it  by  Parlia- 
ment. This  business  could  be  transacted  better  by  a 
small  committee  of  the  burgesses  than  by  the  entire 
court  leet  or  municipal  assembly.  At  the  same  time 
that  this  influence  was  at  work,  the  whole  judicial  sys- 
tem was  being  completely  changed  by  the  introduc- 
tion of  judges  learned  in  the  law,  who  held  the  new 
royal  courts,  and  by  the  establishment  of  the  office  of 
justice  of  the  peace,  which  was  introduced  into  the 
urban  as  well  as  the  rural  districts.  Through  the 
formation  of  these  authorities  the  court  leet  lost 
almost  all  its  judicial  functions.  The  result  was  the 
formation  of  a  committee  of  the  original  court  leet 
or  assembly  of  the  municipal  citizens  for  the  trans- 
action of  borough  business.  This  committee  gradu- 
ally assumed  the  performance  of  all  municipal  business 
which  had  sprung  up,  such  as  the  management  of  the 


20  2  LOCAL  ADMLNLSTRATLON. 

property  of  the  municipality,  and  finally  was  com- 
posed of  the  larger  taxpayers — the  most  important 
men  of  the  town,  who  often  at  the  same  time  were 
granted  by  the  Crown  a  commission  of  the  peace,  as 
a  result  of  which  they  became  justices  of  the  peace 
with  the  usual  powers.  The  larger  boroughs  had  not 
only  a  commission  of  the  peace  but  also  the  right  to 
a  court  of  quarter  sessions  for  the  borough,  with  the 
usual  powers. 

The  larger  taxpayers  got  these  extensive  powers 
as  a  result  of  the  fact  that  the  smaller  taxpayers  did 
not  avail  themselves  of  their  rio-hts.  The  old  basis 
of  municipal  rights  i.  e.,  the  paying  scot  and 
bearing  lot,  was  undermined,  and  was  replaced  by 
different  principles,  varying  in  accordance  with  the 
social  and  economic  conditions  of  the  various 
boroughs.  In  those  boroughs  which,  like  London, 
had  great  commercial  and  manufacturing  interests, 
membership  in  one  of  the  guilds  or  mercantile  com- 
panies became  the  basis  of  the  right  to  discharge 
municipal  functions.  Thus  was  formed  the  borough 
council  or  leet  jury  or  capital  burgesses,  as  the  new 
municipal  authority  composed  of  the  important  men 
of  the  borough  was  called,  which,  whatever  the  name 
that  was  given  to  it,  was  generally  renewed  by  co- 
optation.  The  result  was  that  in  the  fifteenth  cen- 
tury in  the  boroughs  as  well  as  in  the  open  country 
the  government  was  administered  by  the  well-to-do 
classes,  the  nobility  and  gentry  in  the  rural  districts, 
and  those  who  had  become  rich  through  commerce 
and  trade  in  the  urban  districts. 

3.  Period  of  incorporation. — Soon  after  this  definite 
form  of  municipal  organization  was  reached,    in   ac- 


MUNICIPAL  ORGANIZATION.  203 

cordance  with  which  the  borough  was  controlled  by  a 
council  of  rich  men  chosen  by  co-optation,  the 
period  of  municipal  charters  began.  The  charters 
of  incorporation  which  were  granted  incorporated 
not  the  inhabitants  of  the  borough,  but  the  council 
which  controlled  the  affairs  of  the  boroueh.  The 
only  purpose  of  these  charters  was  to  give  to  these 
districts  the  right  to  hold  property  and  to  sue  and  be 
sued.  The  charters  had  no  special  political  signifi- 
cance, they  did  not  grant  any  new  governmental 
powers  to  the  borough  authorities. 

The  desire  of  the  Crown  to  control,  through  the 
representation  in  Parliament  granted  to  the  munici- 
pal boroughs,  the  composition  of  Parliament,  led  the 
Crown  to  make  most  improvident  grants  of  munici- 
pal charters  carrying  with  them  parliamentary  repre- 
sentation, with  the  result  that  the  municipal  popula- 
tion had  for  a  long  time  more  than  its  fair  share  of 
representation  in  Parliament.  As  the  grant  of  such 
charters  would  not  have  served  the  purpose  of  the 
Crown  if  it  were  not  able  to  control  the  municipal 
elections,  the  Crown  strove  so  far  as  it  could  to  put 
all  municipal  powers  into  a  few  hands.  The  courts, 
therefore,  which  were  dependent  upon  the  Crown, 
held  that  any  custom  which  provided  for  the  control 
of  the  municipal  administration  by  the  narrow 
borough  council  was  in  accordance  with  public  policy 
and  valid.^  Further,  in  the  early  part  of  the  reigns 
of  the  Stuarts,  quo  warra7zto  was  issued  in  many  cases 
to  municipal  corporations  in  order  to  forfeit  their 
charters  for  irregularities  and  illegal  actions,  and  on 

'  See  the  case  of  corporations  decided  in  the  time  of  Elizabeth,  Dillon,  op. 
cit.,  i,  18  ;  and  Ireland  and  Free  Borough,  12  Coke,  120. 


204  LOCAL  ADMINISTRATION. 

the  decision  of  the  courts  against  the  corporations 
new  and  less  Hberal  charters  were  granted.  Many 
corporations,  alarmed  at  the  action  of  the  Crown  and 
the  courts,  surrendered  their  charters  and  received 
new  charters  of  a  much  less  liberal  character.  All 
this  was  done  to  enable  the  Crown  to  control  the 
action  of  the  borouo;hs  in  their  election  of  members 
of  Parliament.^  The  result  was  that  the  municipal 
organization  was  so  formed  and  its  powers  so  prosti- 
tuted as  almost  entirely  to  destroy  its  usefulness  for 
administrative  purposes.  When,  after  the  revolution 
of  1688,  the  nobles  and  gentry  got  the  control  of  the 
government,  the  case  was  the  same,  the  only  difference 
being  that  the  nobles  instead  of  the  Crown  made  use 
of  the  municipal  organization  in  order  to  control  the 
composition  of  Parliament.  Not  only  was  the  con- 
dition of  the  municipalities  an  extremely  bad  one, 
but  all  hopes  of  reform  were  vain  so  long  as  either 
the  Crown  or  the  nobles  controlled  the  grovernment. 
For  the  control  of  Parliament  was  too  valuable  to  be 
given  up  voluntarily  by  its  holders. 

So  long  as  the  municipal  organization  was  so  de- 
fective, it  was  useless  to  expect  that  the  new  functions 
of  municipal  administration,  the  adoption  of  which 
was  necessitated  by  the  increase  of  urban  population, 
would  be  put  into  the  hands  of  the  municipal  authori- 
ties. When  the  parish  administration  grew  up  in  the 
time  of  the  Tudors,  it  was  therefore  extended  into 
the  urban  as  well  as  into  the  rural  districts.  In  this 
way  the  poor-law  was  administered,  not  by  the  bor- 
ough  council,   but   by  the    parish  authorities,  which 

'See  Dillon,  op.  cit.,  i.,  18  ;  Allinson  and  Penrose,  Philadelphia,   10;  Rex 
»'/.  London,  8  How.  St.  Tr.,  1039,  1340. 


MUNICIPAL  ORGANIZATION.  205 

acted  under  the  continual  supervision  of  the  justices 
of  the  peace.  As  it  became  necessary  to  make  some 
provision  for  the  lighting  and  paving  of  the  streets, 
the  course  adopted  for  the  satisfaction  of  these  needs 
was  the  same.  Either  these  matters  were  entrusted 
to  the  parishes  or  special  trusts,  or  commissions  were 
formed  for  their  care  by  local  and  special  legislation 
in  particular  boroughs,  and  the  inhabitants  were 
forced  to  contribute  to  the  expenses  of  these  branches 
of  administration.^ 

Such  was  the  condition  of  the  English  municipality 
at  the  time  that  America  was  colonized.  The  strictly 
municipal  affairs,  which  were  mainly  such  matters  as 
the  care  of  the  city  property,  the  issue  of  local  police 
ordinances,  and  a  certain  power  in  the  administration 
of  justice,^  were  attended  to  by  the  borough  council, 
or  by  its  members  in  their  capacity  as  justices  of  the 
peace  ;  and  this  council  was  chosen  generally  by  co- 
optation.  This  body  did  not  attend  to  all  matters 
affecting  the  welfare  of  the  borough,  since  many  of 
these  matters  were  entrusted  to  the  parishes  and 
other  special  authorities,  and  had  almost  no  functions 
to  discharge  which  related  to  the  general  administra- 
tion of  the  country.  The  form  of  the  borough  coun- 
cil was  the  same  as  it  had  been  during  the  middle 
ages.  It  was  composed  generally  of  the  mayor,  re- 
corder, aldermen,  and  councilmen. 

//. — History  of  the  American  municipality. 

I.  The  original  American  m,unicipality . — Just  as 
the   English  system  of  rural   local  government  was 

'  Gneist,  Self -Government,  etc.,  595. 

'  On  account  of  the  fact  that  a  special  commission  of  the  peace  was  often 
issued  to  the  boroughs. 


2o6  LOCAL  ADMINISTRATION. 

made  the  model  on  which  the  original  system  of 
American  rural  local  administration  was  formed,  so 
the  form  of  the  municipal  administration,  as  it  existed 
in  England  in  the  seventeenth  century,  was  made  the 
model  of  the  original  system  of  American  municipal 
administration. 

In  the  first  place,  a  special  organization  was  pro- 
vided from  the  beo-inningr  for  most  of  the  cities  in  the 
colonies.  Only  one  city,  to  wit,  Boston,  was  ever 
governed  in  the  same  way  as  the  rural  towns.^  New 
York  and  Philadelphia  have,  from  the  beginning  of 
their  history  as  English  municipalities,  had  charters 
or  forms  of  organization  which  differed  considerably 
from  the  organization  of  the  surroundino-  rural  dis- 
tricts.  The  original  form  granted  by  these  charters 
also  resembled  very  closely  the  English  municipal 
organization  of  the  same  period.^  The  city  authority 
was  the  council,  composed  of  the  mayor,  recorder, 
aldermen,  and  assistants  or  councilmen.  In  this  body 
was  centred  the  entire  municipal  corporate  business. 
The  administrative  powers  were  not,  however,  so  large 
as  they  are  now.  Like  the  English  municipal  cor- 
poration, the  original  American  municipal  corporation 
was  mainly  an  organization  for  the  satisfaction  of 
purely  local  needs,  i.  e.,  for  the  management  of  the  local 
property  and  finances,  and  the  issue  of  local  police 
ordinances.  Certain  of  the  officers  of  the  corporation, 
however,    discharged   a   series   of  judicial  and  police 

'  yohns  Hopkins  University  Studies  in  Historical  and  Political  Science,  v., 

79- 

*  For  New  York  see  the  Dongan  Charter  of  i6S6  and  the  Montgomerie 
Charter  of  1730,  to  be  found  in  Kent's  Commentary  on  the  City  Charter,  and 
Ash,  Charter  of  the  City  of  New  York  ;    for  Philadelphia,  see  Penn's  Charter 

y.  H.  u.  s,  v.,  15. 


MUNICIPAL  ORGANIZATION.  207 

functions,  as  was  the  case  in  the  Enghsh  municipal- 
ity. Thus,  in  both  New  York  and  Philadelphia,  the 
mayor,  recorder,  and  aldermen  were  the  municipal 
justices  of  the  peace  and  judges.^  The  affairs  of  the 
general  administration  of  the  colony  were  attended  to 
in  the  municipality  by  ofificers  similar  to  the  regular 
officers  in  the  counties  and  rural  districts.^  One  of 
the  results  of  this  purely  local  character  of  the 
American  municipality  was  that  the  council  had  no 
power  to  tax  in  order  to  provide  for  the  expense  of 
the  municipal  services.  It  was  not  regarded  as  a 
sufficiently  governmental  authority  to  be  endowed 
with  this  attribute  of  sovereignty.^  A  New  York  law 
of  1787  provided  that  the  mayor,  recorder,  and  alder- 
men, as  the  board  of  supervisors  of  the  county  of 
New  York,  were  to  levy  the  taxes  demanded  by  the 
central  state  orovernment  of  the  inhabitants   of  the 

o 

city  as  inhabitants  of  the  state,  the  principle  of  the 
fLr7na  burgi  having  long  ago  been  forgotten. 

The  city  council  in  New  York,  with  the  exception 
of  the  mayor  and  recorder,  who  were  appointed  by 
the  governor  and  council,  were  by  the  charter  to  be 
elected  by  the  freemen  of  the  city,  being  inhabitants, 

'  For  New  York,  Charter  of  lyjo,  sees.  23,  26,  27,  and  31.  All  the  present 
local  courts  in  New  York  City,  with  the  exception,  of  course,  of  the  supreme 
court,  are  simply  outgrowths  of  the  original  judicial  powers  of  the  mayor,  re- 
corder, and  aldermen.  The  recorder  has  also  become  an  almost  exclusively 
judicial  officer.     For  Philadelphia,  see  J.  H.  U.  S.,  v.,  19  and  29. 

^E.g.,  for  the  administration  of  the  poor-law  there  were  the  regular  over- 
seers of  the  poor,  elected  in  the  wards  of  the  city,  and  the  expenses  of  this 
branch  of  administration  were  defrayed  by  the  church  parishes.  See  Black, 
T/ie  History  of  the  Municipal  Ownership  of  Land  on  Manhattan  Island,  in 
Columbia  College  Studies  in  History,  etc,,  i.,  182;  also  J.  H.  U.  S.,v.,  27. 
For  the  collection  of  the  central  colonial  tax,  the  New  York  Charter  provided 
for  the  election  of  assessors  and  collectors  similar  to  the  town  officers  of  the 
same  name.     See  Charter  of  lyjo.  sec.  3. 

2 See  Black,  op.  cit.,  iSi  ;  J.  H.  U.  S.,  v.,  22. 


2o8  LOCAL  ADMLNLSTRATION, 

and  the  freeholders  of  each  of  the  wards  into  which 
the  city  for  the  purposes  of  administration  was  di- 
vided. The  freedom  of  the  city  was  given  by  the 
mayor  and  four  or  more  aldermen  in  common  council, 
generally  in  return  for  the  payment  of  money  ;  and. 
besides  giving  in  the  proper  cases  the  right  to  vote, 
was  the  only  authorization  to  pursue  certain  trades 
within  the  confines  of  the  city.^  In  Philadelphia  the 
council  was,  as  was  so  common  in  England  at  the 
time,  elected  by  co-optation.^  Finally,  the  city  cor- 
poration was,  as  in  England,  regarded  as  consisting 
of  the  city  officers,  i.  e.,  the  council,  or  the  council 
and  the  freemen."^ 

Such  was  the  original  position  and  such  was  the 
original  organization  of  the  American  city.  Since 
the  beginning  of  its  history  the  American  city  has 
developed  in  two  directions.  In  the  first  place,  the 
position  of  the  city  and  the  duties  to  be  attended  to 
by  its  officers  have  greatly  changed. 

2.  Change  in  the  position  of  the  city. — The  state 
legislature  has,  to  a  large  extent,  lost  sight  of  the 
original  purpose  of  the  city,  and  has  come  to  regard 
it  as  an  organ  of  the  central  government  for  the  pur- 
poses of  the  general  state  administration.  One  result 
of  the  more  public  character  which  has  been  assigned 
to  the  city  by  the  American  law  and  development  is 
that  the  corporation  is  not  regarded  as  consisting  of 
the  officers,  but  consists  of  all  the  people  residing 
within  the  municipal  district,  while  municipal  suffrage 
is  in  most  cases  the  same  as  state  suffrage.^    Further, 

'  See  Kent's  Charter^  note  35. 

*See  AUinson  and  Penrose,  op.  cit.,  9. 

'  So  in  Philadelphia.     See  AUinson  and  Penrose,  loc.  cit, 

*  Dillon.  oi>.  cit.,  i.,  p.  70. 


MUNICIPAL  ORGANIZATION.  209 

the  state  makes  use  very  frequently  of  the  city  or  its 
officers  as  agents  for  the  purposes  of  state  administra- 
tion. Thus,  in  financial  matters,  the  city,  when  of 
large  size,  is  often  made  the  agent  of  the  state  admin- 
istration for  the  assessment  and  collection  of  taxes ; 
indeed,  the  city  itself  is  often  practically  the  taxpayer 
of  certain  of  the  state  taxes,  e.  g.,  the  general  property 
tax,^  which  it  is  then  to  collect  of  the  owners  of 
property. 

Further,  in  many  cases,  where  the  city  has  not 
been  made  directly  the  agent  of  the  central  state  ad- 
ministration, in  that  it  itself,  or  through  its  officers,  is 
to  attend  to  certain  matters  of  general  interest,  the 
expense  of  a  long  series  of  matters  is  often  devolved 
upon  the  city.  This  is  particularly  true  of  the  matter 
of  education.^  The  board  of  education,  which  has 
control  of  the  educational  administration  within  the 
limits  of  the  city,  and  which  is  often  regarded  as  a 
separate  municipal  corporation,  is  usually  elected  by 
the  people  residing  within  the  district  In  some  cases, 
however,  this  body  is  appointed  by  the  municipal 
authorities,  as,  e.  g.,  in  New  York  ;  "^  in  others,  it  is 
appointed  by  the  legislature,  as  in  Baltimore.^  Fi- 
nally, municipal  officers  are  often  made  use  of  for  the 
purposes  of  general  state  administration.  Thus,  in 
most  of  the  large  cities,  municipal  officers,  either 
elected  by  the  people  of  the  city,  or  appointed  by  the 

'  It  is  to  be  noted,  however,  that  the  city  has  very  generally  been  granted 
the  local  taxing  power.  Ibid.,  69.  It  is  no  longer  compelled  to  defray  its 
municipal  expenses  from  the  revenue  of  its  property.  See  Quid  vs.  Richmond, 
23  Grattan,  Va.,  464  ;  14  Amer.  Rep.,  139,  for  an  example  of  the  general  grant 
of  taxing  power  to  cities. 

•Cf.  Bryce,  American  Commonwealth,  first  American  edition,  i.,  599. 

^  Rollin,  School  Administration,  etc.,  and  table,  p.  24. 

*  ibid. 

14 


2IO  LOCAL  ADMINISTRATION. 

municipal  authorities,  are  entrusted  with  the  care  of 
the  pubHc  health  and  the  support  of  the  poor,  attend 
to  election  matters,  and  have  a  series  of  duties  to  per- 
form relative  to  the  administration  of  judicial  affairs, 
such  as  the  making  up  of  the  jury  lists. 

In  certain  cases  duties,  which  were  in  the  old  times 
entrusted  to  the  municipalities  or  their  officers,  have 
been  assumed  by  the  central  state  administration. 
Thus  the  preservation  of  the  peace  has  in  several  of 
the  large  cities  been  put  into  the  hands  of  a  commis- 
sion appointed  by  the  central  government  of  the  state.' 
Further  the  courts  of  several  of  the  states  have  held 
that  the  preservation  of  the  peace  is  not  a  municipal 
function.^ 

What  is  true  in  exceptional  cases  of  the  preserva- 
tion of  the  peace  is  almost  universally  true  of  the  ad- 
ministration of  justice,  which  is  no  longer  regarded 
as  merely  of  local  concern,  but  as  a  matter  which  should 
be  attended  to  in  accordance  with  a  uniform  system 
throucrhout  the  state.  The  courts  which  act  at  the 
present  time  in  the  various  cities  are  not  municipal 
but  state  courts.  Their  expenses  may,  it  is  true,  be 
paid  in  large  part  by  the  cities  in  which  they  act,  but 
the  judges  and  their  subordinate  officers  are  not 
regarded  as  municipal  ofiicers.^     An  exception  to  this 

'  This  is  so  in  Boston,  where  the  care  of  the  police  is  given  to  a  board  of 
police,  appointed  by  the  governor  and  council  oi  the  commonwealth,  Mass.  L. 
of  1885,  c.  323.  In  Nebraska  the  boards  of  police  and  fire  commissioners  in 
cities  of  over  80,000  inhabitants  are  appointed  by  the  governor.  Compiled 
Statutes  1889,  pp.  147,  148.  See  for  St.  Louis,  J.  H.  U.  S.,  v.,  166.  In 
Baltimore  the  board  of  police  is  appointed  by  the  legislature  of  the  common- 
wealth. See  Allinson  and  Penrose,  Philadelphia,  329  ;  Fairlie,  Municipal 
Admitiistration,  142. 

^People  vs.  Mahaney,  13  Mich.,  481;  Redell  vs.  Moore,  63  Neb.,  219; 
State  vs.  Hunter,  38  Kan.,  578.     But  see  People  vs.  Albertson,  55  N.  Y.,  50. 

'Dillon,  op.  cit.,  i.,  99,  and  cases  cited. 


MUNICIPAL  ORGANIZATION.  211 

rule  may  be  found  in  the  case  of  the  local  tribunals 
called  by  different  names,  such  as  the  mayor's  court, 
the  recorder's  court,  and  the  like/  These  may  be 
regarded  as  municipal  courts  when  the  judges  who 
form  them  are  elected  by  municipal  electors  or  ap- 
pointed by  the  municipal  authorities,  and  when  they 
have  jurisdiction  over  municipal  police  ordinances 
only.  In  some  cities  the  mayor  and  aldermen  still 
discharge  judicial  functions. 

But,  although  the  state  agency  of  cities  has  been 
made  much  more  prominent  than  it  once  was,  the 
work  which  the  city  does  of  a  character  which  affects 
the  interests  of  its  own  inhabitants  has  also  greatly 
increased.  This  increase  is  in  large  part  due  to  the 
attention  which  has  been  devoted  by  the  cities  to  the 
matter  of  public  works.  Most  of  the  important  cities 
of  the  country  have  caused  themselves  to  be  supplied 
with  water,  with  means  of  intra-urban  transportation, 
and  with  some  system  of  public  lighting.  In  some 
cases  this  has  been  done  by  means  of  direct  municipal 
administration  ;  in  other  cases  resort  has  been  had 
to  private  corporations,  which  conduct  these  services 
under  municipal  or  state  supervision.  Further,  most 
cities  have  provided  themselves  with  sewerage  sys- 
tems, parks  and  playgrounds,  and  in  many  places 
public  libraries,  and  have  everywhere  provided  paved 
streets  and  boulevards  which  afford  a  great  contrast 
with  the  streets  as  they  existed  at  the  beginning  of  the 
nineteenth  century." 

The  fact  that  cities  have  become  such  important 

^  Dillon,  op.  cit.,   i.,  492. 

'  For  a  description  of  what  American  cities  have  done  along  these  lines,  see 
Zeublin,  Municipal  Progress ;  Fairlie,  A/unicipal  Administration/  Wilcox, 
The  American  City. 


212  LOCAL  ADMINISTRATION. 

agfents  of  the  state  orovernment  in  their  manag'ement 
of  taxes,  education,  care  for  the  poor  and  the  pubhc 
health,  and  the  preservation  of  the  pubhc  peace  and 
safety,  has,  however,  brought  it  about  that  the  state 
government  has  very  generally  changed  its  attitude 
toward  them.  While  in  the  early  period  of  our 
municipal  history  the  cities,  very  largely,  attended 
to  the  affairs  whose  management  was  entrusted  to 
them  quite  free  from  central  control,^  the  enlarge- 
ment of  their  functions  has  been  followed  by  the 
attempt  on  the  part  of  the  state  to  regulate  their  acts. 
This  attempt  upon  the  part  of  the  state  has,  in  many 
cases,  had  a  disastrous  effect  upon  the  welfare  of  cities, 
and  the  tendency  of  the  legislature  thus  to  interfere 
has  been  checked  through  the  adoption  of  constitu- 
tional provisions  limiting  the  power  of  the  state  legis- 
latures.^ 

///. — Change  in  municipal  organization. 

I.  The  application  to  municipal  organization  of  the 
principle  of  the  separation  of  powers ^^ — The  original 
system  of  city  government  in  the  United  States  was, 
it  has  been  shown,  a  council  system  ;  that  is,  there 
was  practically  only  one  municipal  authority,  the 
council,  in  whose  hands  were  centred  all  municipal 
powers.  Very  early  in  the  nineteenth  century,  how- 
ever, the  attempt  was  made  to  apply  to  the  city  organi- 
zation the  principle  of  the  separation  of  powers  which 

'See  Mayor  vs.  Ordrenan,  12  Johnson,  N.  Y.,  125,  where  it  is  said  that  it 
was  the  almost  universal  course  of  proceeding  for  the  legislature  not  to  pass 
an  act  relative  to  the  city  of  New  York  without  first  obtaining  the  city's 
consent. 

*  Supra,  p.  172. 

'See  Fairlie,  Alunicipal Administration,  chap.  v. 


MUNICIPAL  ORGANIZATION.  213 

lies  at  the  basis  of  the  state  g-overnments.  The 
appHcation  of  the  principle  of  the  separation  of 
powers  to  the  city  governments  resulted,  in  the  first 
place  in  the  differentiation  of  the  mayor  from  the 
council.  The  mayor,  who  had  been  the  presiding 
officer  of  the  council,  sometimes  appointed  by  it, 
sometimes  appointed  by  the  governor  of  the  state,  be- 
came elective  by  the  people  of  the  city.  Since  1830, 
most  city  charters  have  provided  for  a  mayor  elected 
by  the  people  of  the  city. 

The  next  change  in  the  city  organization  consisted 
in  emphasizing  the  separation  of  the  executive  from 
the  legislative  part  of  the  system.  The  attempt  was 
made  to  form  by  the  side  of  the  mayor  what  were 
called  executive  departments,  the  heads  of  which  were 
to  be  selected  in  various  ways.  Prior  to  the  estab- 
lishment of  such  departments,  the  detailed  organiza- 
tion of  the  city  government  was  fixed  by  ordinances 
of  the  city  council.  These  usually  provided  for  coun- 
cil committees  which  under  the  oreneral  direction  of  the 
council  attended  to  the  various  branches  of  activity 
assumed  by  the  city.  Inasmuch  as  the  new  executive 
departments  were  commonly  provided  for  by  the 
charter  and  not  by  municipal  ordinance,  the  council 
lost  the  power  to  regulate  the  detailed  organization 
of  the  city  government.  For  what  was  fixed  by  the 
charter  could  not  be  changed  by  ordinance.  Further- 
more, largely  as  a  part  of  the  great  democratic  move- 
ment of  the  middle  of  the  nineteenth  century,  the 
officers  at  the  head  of  these  departments  were 
frequently  made  elective  by  the  people  of  the  city. 
The  elective  method  did  not,  however,  work  satis- 
factorily, and  soon  popular  election  was  replaced  by 


214  LOCAL  ADMINLSTRATION. 

appointment  by  the  mayor,  subject  to  confirmation  by 
the  council. 

By  i860,  the  executive  departments  were  made 
even  more  independent  of  the  council,  and  even  in- 
dependent of  the  mayor,  by  the  provision  for  the 
appointment  of  the  heads  of  these  departments  by  the 
state  government.  Such  central  appointment  was 
particularly  common  in  the  case  of  the  head  of  the 
police  department.  This  department  was  established 
in  somewhat  its  present  form  about  1840,  when  the 
present  professional,  disciplined,  semi-military  police 
force,  modelled  after  the  London  metropolitan  force, 
was  formed. 

2.  The  board  system. — The  system  of  city  govern- 
ment composed  of  the  council,  mayor,  and  independent 
city  departments  may  be  called  the  board  system. 
It  lasted  from  about  i860  to  about  1880,  when  it 
showed  a  tendency  to  be  replaced  by  the  present 
mayor  system.  During  the  latter  part  of  the  exist- 
ence of  the  board  system,  the  method  of  state 
appointment  of  municipal  department  heads  was, 
apart  from  the  police  department,  generally  aban- 
doned, but  the  terms  of  the  heads  of  departments 
were  generally  longer  than  that  of  the  mayor,  who 
had  no  power  to  remove  them  from  office.  A  given 
mayor  under  these  conditions  had  practically  only 
the  power  to  appoint  to  vacancies  occurring  during  his 
term.^  The  mayor  could  not,  therefore,  be  said  to  be 
responsible  for  the  administration  of  city  governmerit 
during  his  term  of  office,  but  his  position  resembUd 

'  Organized  by  Sir  Robert  Peel  in  1S29. 

'  The  charter  of  the  city  of  New  York,  provided  by  the  consolidation  ac'  if 
1882,  is  a  good  example  of  the  board  system. 


MUNICIPAL  ORGANIZATION.  215 

very    closely    that   of    the   governor    of    one   of    the 
states. 

3.  The  7?iayor  system. — By  1880,  however,  the 
belief  began  to  be  held  that  the  board  system  of  city 
government  was  unfortunate  in  that  it  split  up  the 
city  organization  too  much  and  made  no  provision  for 
the  concentration  of  responsibility.  Therefore  the 
charter  amendments  that  were  commonly  made  after 
that  date  increased  the  powers  of  appointment  and 
removal  of  the  mayor,  so  that  in  the  latest  form  of 
city  government  which  we  have,  and  which  may  be 
called  the  mayor  system,  we  find  a  mayor  who  often 
has  the  powers  to  appoint  absolutely  the  heads  of  the 
departments  when  he  comes  into  office,  and  to 
remove  them  from  office  whenever  he  sees  fit  and  for 
whatever  reason  he  may  allege. 

4.  Loss  of  power  by  council. — While  the  council  was 
thus  losing  in  power  to  the  mayor  and  executive  de- 
partments, it  was  also  losing  in  power  to  the  state 
legislature,  which  passed  charters  more  and  more  de- 
tailed in  their  character.  The  council  lost  in  this  way 
a  large  part  of  its  financial  power  in  that  the  charters 
or  special  acts  relative  to  the  city  government  fixed  in 
detail  many  of  the  municipal  expenses.  The  council 
lost  also  a  large  part  of  its  ordinance  power  in  that 
matters  formerly  regulated  by  ordinance  were  regu- 
lated by  some  provision  of  the  charter,  or  their 
regulation  was  vested  in  some  one  of  the  executive 
authorities  of  the  city  government.  The  very  gen- 
eral adoption  of  constitutional  amendments  limiting 
the  power  of  the  state  legislature  has  had,  however, 
the  effect  of  restoring  to  the  council  some  of  the 
former  powers  of  which  it  had  been  deprived. 


2i6  LOCAL  ADMJNISTRATLON. 

IV.  —  The  present  organization. 

The  changes  in  municipal  organization  which  have 
been  outHned  have  not  all  been  made  in  all  cities,  nor 
have  they  received  the  same  degree  of  approval  in  all 
parts  of  the  country.  The  result  is  that  we  find  at 
the  present  time  three  pretty  distinct  types  of  munici- 
pal government:  the  first  resembles  most  closely  the 
original  type  and  may,  therefore,  be  called  the  council 
type. 

1.  The  council  type  of  city  government. — The  char- 
acteristic of  the  council  type  of  city  government  is 
that,  although  the  mayor  may  be  elected  by  the 
people  of  the  city  and  not  by  the  council,  he  has  few 
powers  except  to  preside  over  the  council,  to  cast  a  de- 
ciding vote  in  the  case  of  a  tie  vote,  or  to  disapprove 
the  council's  resolutions,  which,  in  such  cases,  must  be 
passed  again  by  that  body  by  an  extraordinary  ma- 
jority. In  this  type  of  city  government,  the  council  is, 
as  it  originally  was,  the  prominent  factor.  It  dis- 
charges both  legislative  and  executive  functions,  and 
attends,  through  committees  or  through  officers  whom 
it  appoints,  to  the  detailed  administration  of  the  city 
services.  This  type  of  city  government  is  to  be  found 
in  most  of  the  smaller  cities,  particularly  in  the  west 
and  south,  and  is  found  only  now  and  then  in  the 
larger  cities. 

2.  The  board  type. — The  second  type  of  city  govern- 
ment resembles  more  closely  the  board  system  as  it 
has  been  described.  We  find  not  only  a  council  and 
a  mayor,  but  also  a  number  of  independent  officers  or 
boards  whose  members,  once  in  office,  are  largely  in- 
dependent of  any  other  city  authority.     The  members 


MUNICIPAL  ORGANIZATION.  217 

of  these  boards  and  these  officers  are  sometimes 
elected  by  the  people  of  the  city,  sometimes  appointed 
by  the  central  state  government,  but  most  commonly 
appointed  by  the  mayor  with  the  confirmation  of  the 
council.  They  serve  for  comparatively  long  terms, 
often  for  as  long  as  six  years,  and  may  be  removed 
before  the  expiration  of  their  term  only  for  cause  and 
usually  by  the  mayor,  but  sometimes  by  the  governor 
of  the  state.  Where  the  board  system  has  been 
adopted  in  this  extreme  form,  the  powers  of  the  council 
are  apt  to  be  small,  most  of  the  financial  powers  being 
exercised  by  the  boards  and  officers  independently  of 
the  council,  and  in  accordance  with  the  provisions  of 
state  laws.  Frequently  the  entire  local  policy  of  the 
city  in  this  form  of  city  government  is  determined  by 
the  state  legislature  and  carried  out  by  these  inde- 
pendent boards  and  officers.  One  of  the  most  im- 
portant of  these  boards  in  the  board  system  is  a 
financial  board,  often  called  the  board  of  estimate  or 
revenue,  which  either  exercises  almost  all  the  import- 
ant financial  powers  of  the  city  or  shares  their  exer- 
cise with  the  council.  The  new  municipal  code  of  the 
state  of  Ohio  offers  a  good  example  of  the  board 
system. 

3.  The  mayor  type. — The  third  type  of  city  gov- 
ernment to  be  found  in  the  United  States  is  what  has 
been  called  the  mayor  system.  Under  this  system, 
the  mayor  appoints  all  the  heads  of  city  departments 
or  all,  with  perhaps  the  exception  of  the  chief  financial 
officer  who  is  elected.  He  likewise  has  the  power 
to  remove  his  appointees  from  oflfice  whenever  he 
sees  fit  and  may  therefore  be  regarded  as  abso- 
lutely responsible  for  the  administration  of  the  city 


2i8  LOCAL  ADMINISTRATLON. 

government.  This  system  of  city  government  has 
been  very  commonly  adopted  in  the  larger  cities  of 
the  country.  The  present  city  of  New  York  offers  a 
good  example  of  the  mayor  system.  The  council  or 
board  of  aldermen,  as  it  is  called  in  New  York,  is, 
however,  less  important  than  in  most  other  large 
cities  which  have  adopted  the  system,  though  it  has 
greater  powers  than  it  had  prior  to  the  adoption  of 
the  present  charter. 

4.  Terms  of  city  officers. — The  terms  of  office  of  city 
officers  under  these  various  systems  differ  greatly 
without  having  any  very  close  relation  to  the  type  of 
city  government  adopted.  As  a  general  thing,  the 
term  of  both  council  and  mayor  is  two  years,  though 
it  varies  between  one  and  four  years.  Often  the  term 
of  the  mayor  is  a  short  one  as  in  New  York,  where  it 
is  two  years,  although  New  York  has  adopted  the 
mayor  system  of  city  government.  On  the  other 
hand,  it  is  often  a  long  one — four  years — as  in  St. 
Louis,  where  the  board  system  is  the  type  adopted. 

The  council  further  is  organized  quite  differently  in 
different  states,  and  also  apparently  without  any  re- 
gard to  the  character  of  the  system  adopted.  Some- 
times, it  is  renewed  entirely  at  the  same  time  ;  at  other 
times  it  is  renewed  in  such  a  way  as  to  make  it  more 
or  less  of  a  permanent  authority.  As  a  rule,  however, 
it  is  entirely  renewed  at  the  same  time.  Again,  some- 
times certain  of  its  members  are  elected  at  large  and 
certain,  by  single  districts,  though,  in  most  cases,  all 
the  members  would  seem  to  be  elected  on  the  single- 
district  plan.^ 

'  For  the  details  of  the  organization  of  the  city  council,  see  Fairlie,  "  Ameri* 
can  Municipal  Councils,"  P.  S.  Q.,  June,  1904 


MUNICIPAL  ORGANIZATION.  219 

5.  City  schools. — The  relation  of  the  city  to  the 
school  system  differs  considerably  in  the  various  cities 
of  the  United  States.  It  may  be  said,  however,  that, 
as  a  rule,  the  territorial  district  of  the  city  is  the  dis- 
trict for  the  purposes  of  school  administration,  but  it 
is  usually  organized  separately  for  this  purpose.  It  is 
true  that  in  certain  instances  the  authority  in  charge 
of  the  schools  occupies  a  position  very  similar  to  that 
which  is  occupied  by  the  other  city  departments, 
but  even  in  this  case  it  is  often  organized  somewhat 
differently,  consisting  of  a  reasonably  large  and  repre- 
sentative body  of  municipal  citizens.  In  a  great 
many  instances,  however,  the  school  board  is  regarded 
not  as  a  municipal  department  but  as  a  corporation 
which,  while  having  jurisdiction  over  the  same  terri- 
torial district  as  the  city,  is  a  corporation  separate  and 
apart  from  it.  In  such  cases  it  has  a  power  to  levy 
taxes  and  to  determine  the  amount  of  money  which 
shall  be  spent  within  the  city  for  the  purposes  of 
education.^ 

V. —  Villages. 

I.  General  position. — The  city  is  not,  however,  the 
only  municipality  known  to  the  American  law.  In 
many  cases  the  needs  of  a  locality,  which  may  be  a 
portion  of  one  town  or  township  or  may  lie  in  two 
towns,  demand  a  different  form  of  government  from 
that  offered  in  the  ordinary  town  organization,  while 

'For  the  details  of  municipal  school  administration,  see  Rollins,  "School 
Administration  in  Municipal  Government,"  submitted  in  part  fulfilment  of  the 
requirements  for  the  degree  of  Ph.D.  in  the  Faculty  of  Philosophy,  Columbia 
University,  New  York,  June,  1902  ;  see  also  Young,  "Administration  of  City 
Schools,"  Annals  of  the  American  Academy  of  Political  and  Social  Science, 
XV.,  p.  171;  Rowe,  "  The  Financial  Relation  of  the  Department  of  Education 
to  the  City  Government,"  Hid,  p.  1S6.. 


220  LOCAL  ADMLNLSTRATION. 

at  the  same  time  they  do  not  demand,  so  compact  an 
organization  as  that  to  be  found  in  a  city.  For  the 
purpose  of  satisfying  these  demands,  the  village,  bor- 
ough, or  incorporated  town  organization  has  been 
provided.  In  New  England,  where  the  people  have 
been  able  to  satisfy  the  demands  made  by  thickly 
populated  districts  through  the  ordinary  instrumen- 
talities of  the  town,  this  form  of  municipal  organiza- 
tion is  comparatively  rare,  though  it  is  still  to  be 
found,  as  e.  g.  in  Connecticut  and  Vermont,  which 
have  probably  been  influenced  by  their  nearness  to 
New  York.  But  in  the  middle  commonwealths,  and 
in  the  west  and  northwest,  the  village  organization  is 
very  common,  so  common  indeed  as  very  seriously 
to  encroach  upon  the  sphere  of  town  government. 
P'or  in  almost  all  cases  where  the  social  conditions 
are  such  as  to  permit  the  adoption  of  the  village 
organization  {i.  e.,  where  a  comparatively  large  num- 
ber of  people  live  within  a  small  area),  we  find  that  it 
is  as  a  matter  of  fact  adopted.  Thus  in  New  York 
the  general  law  for  the  incorporation  of  villages  pro- 
vides that  the  village  organization  may  be  adopted 
where  three  hundred  resident  inhabitants  are  to  be 
found  in  a  district  of  less  than  one  square  mile  in  ex- 
tent/ The  main  difference  between  the  town  and 
the  village  is  that,  while  the  town  is  sometimes  gov- 
erned by  the  town  meeting,  z.  e.  the  meeting  of  the 
political  people  of  the  town,  the  village  is  always 
governed  by  a  select  body,  to  wit,  the  board  of 
trustees  or  burgesses.  Further,  while  the  town  is  a 
quasi  municipal  corporation,  the  village  is  a  municipal 
corporation   proper,^  since  it  is  formed  primarily  for 

'See  N.  Y.  L.,  1870,  c.  291,  sec.  I.  *  Dillon,  op.  cit.,  i.,  45. 


MUNICIPAL  ORGANIZATION.  221 

the  satisfaction  of  local  needs.  But,  like  the  city,  the 
village,  though  formed  primarily  for  local  needs,  may 
be  made  use  of  by  the  commonwealth  for  the  pur- 
poses of  general  administration.  On  the  other  hand, 
the  village  may  practically  be  distinguished  from  the 
city  from  the  fact  that,  on  account  of  its  small  size,  it 
is  seldom  as  a  matter  of  fact  made  an  agent  of  general 
administration.  About  the  only  branch  of  general 
administration  which  is  entrusted  to  the  village  is  the 
preservation  of  the  peace. 

2.  The  village  organization. — The  ordinary  village 
organization  provided  by  the  states  of  this  country  is 
a  very  simple  one.  It  consists  either  of  a  board  of 
trustees  or  burgesses  elected  by  the  voters  resident 
in  the  village,  which  has  control  of  village  affairs,  ap- 
pointing and  removing  most  of  the  village  officers, 
and  themselves  serving  for  a  short  term.  The  term 
of  office  is  usually  arranged  so  that  only  a  portion  of 
the  members  of  the  board  retire  each  year.  In  many 
instances  the  villaofe  board  cannot  incur  indebtedness 
without  the  approval  of  the  voters  expressed  at  a 
general  or  special  election.^ 

'  An  example  of  the  village  organization  is  to  be  found  in  the  New  York 
Law  of  1870,  c,  291.  For  an  analysis  of  this  law  together  with  its  amend- 
ments, see  Goodnow — Compa7-ative  Administrative  Law,  vol.  i.,  p.  220;  see 
also  the  village  laws  of  Indiana,  Burns's  Annotated  Indiana  Statutes,  1894, 
sees.  4333,  4357,  et  seq. 


BOOK  IV. 
THE  OFFICIAL  RELATION. 


CHAPTER    I. 

OFFICES    AND    OFFICERS. 

/. — Definition. 

By  an  office  is  understood  a  right  or  duty  conferred 
\^  „y?  or  Imposed  by  law  on  a  person  or  several  persons  to 
"•  ,y-  act  in  the  execution  and  application  of  the  law.^  By 
officers  are  meant  those  persons  on  whom  an  office 
has  been  conferred  or  imposed.  The  conceptions  of 
office  and  officer  are  conceptions  of  the  public  law. 
The  g-overnment  may,  however,  either  in  its  central 
or  local  organizations  enter  into  private  legal  rela- 
tions and  as  a  consequence  may  have  employees. 
Inasmuch  as  its  employees  are  regarded  as  having 
entered  into  contract  with  the  government,  no  state 
may,  under  the  constitution  of  the  United  States, 
pass  any  law  which  impairs  the  obligation  of  a  con- 
tract of  employment  made  by  such  state.^  But  since 
the  official  relation  is  not  regarded  as  a  contractual 

'  Cf.  Mechem,  Law  of  Public  Offices  and  Officers,  i. 
*  Hall  vs.  Wisconsin,  103  U.  S.,  5. 

222 


OFFICES  AND  OFFICERS. 


223 


relation  but  as  a  relation  of  the  public  law,  a  state  is 
not  regarded  by  the  courts  as  prevented  from  chang- 
ing the  terms  of  the  official  relation  even  after  it  has 
been  entered  into  by  the  officer.^  Furthermore,  inas- 
much as  the  official  relation  is  a  public  legal  relation 
and  the  relation  of  employer  and  employee  is  a  pri- 
vate legal  relation,  the  rules  of  the  public  law  apply 
to  the  official  relation,  while  the  rules  of  the  private 
law  apply  to  all  government  employments.^ 

The  difference  between  the  legal  aspects  of  the 
contractual  relation  of  employer  and  employee  and 
those  of  the  official  relation  makes  it  necessary  to 
distinguish  between  the  contract  of  employment  and 
the  official  relation.  While  there  are  other  criteria 
which  may  be  of  use  in  distinguishing  an  office  from 
an  employment,  the  most  important  means  of  distinc- 
tion is  that,  while  an  employment  is  created  by  con- 
tract^~an~office  finds  its  source  and  its  limitations  in 
some  act  of  governmental  power.  Thus  where 
the  legislature  creates  by  an  act  of  legislation  the 
position  of  public  printer,  such  a  position  is  regarded 
as  an  office,  its  incumbent  is  an  officer  and  therefore 
may  not  assign  the  position,  inasmuch  as  an  office  is 
not  by  law  capable  of  assignment.^  On  the  other 
hand,  where  the  legislature  provides  that  the  public 
printing  is  to  be  contracted  for,  the  public  printer  is 
regarded  as  a  contractor  or  an  employee  and  not  as 
an  officer.^  In  other  words,  if  a  provision  of  law — 
namely,  the  constitution,  a  statute  of  the  legislature, 

'  Butler  vs.  Pennsylvania,  10  Howard,  402. 
'  Cy.  Fitzsimmons  vs.  Brooklyn,  102  N.  Y.,  536. 
'Ellis  vs.  State,  4  Indiana,  i. 

*  Brown  vs.  Turner,  70  N.  Car.,  93;  see  also  Detroit  Free  Press  Company  vs. 
State  Auditors,  47  Mich.,  135. 


i'Ww-U  . 


^ 


2  24  THE  OFFICIAL  RELATION. 

or  an  ordinance  of  an  administrative  authority  or  a 
municipal  corporation — provides  for  a  definite  position 
in  the  pubhc  service,  fixing  the  duties  to  be  discharged 
by  the  incumbent,  his  term  of  office,  and  the  method 
by  which  the  position  is  obtained,  such  position  is  to 
be  regarded — in  the  absence  of  some  pecuhar  statute 
— as  an  office  and  not  as  an  employment.  If,  on  the 
other  hand,  the  position  finds  no  basis  in  the  law  as 
above  defined,  but  is  founded  upon  an  agreement 
made  between  the  person  holding  such  position  and 
some  authority  in  the  government,  which  agreement 
determines  the  compensation,  the  duration  of  the  em- 
ployment, and  the  duties  to  be  discharged  by  the  per- 
son with  whom  such  agreement  is  made,  such  a  position 
is  regarded  as  an  employment  and  not  as  an  office.^ 

It  will  be  noticed  from  what  has  been  said  that  the 
conception  of  an  office  does  not  depend  upon  the 
character  of  the  duties  to  be  performed.  These 
duties  may  be  similar  to,  or  even  identical  in  character 
with,  the  duties  discharged  by  private  persons,  but  if 
the  right  to  discharge  them  is  dependent  upon  some 
provision  of  law  as  above  set  forth,  and  not  upon  an 
agreement  or  a  contract,  the  right  to  discharge  them 
is  regarded  as  an  office  and  not  as  an  employment. 
Thus,  a  clerk  in  an  executive  department  of  the 
United  States,  or  one  of  the  states,  may  be  an 
officer.^ 

While  the  rule,  that  a  position  established  by  law,_ 
and  not  by  contract,  is  an  office,  is  a  safe  rule  to  follow 
under  ordinary  conditions,  at  the  same  time  peculiar 

'  Olmstead  vs.  The  Mayor,  42  Superior  Court  Reports,  N.  Y.,  481. 
'  Ex  parte  Smith,  2  Cranch  C.  C,  693  ;  United  States  vs.  Hartwell,  6  Wa]. 
lace,  3S5  ;  Vaughan  vs.  English,  S  Cal.,  39. 


r." 


O    ' 


OFFICES  AND  OFFICERS.  225 

statutes   may  result  in   the   adoption  of   a  different 
method  of  determining  whether  a  given  position  is  an       ^  ff 
office    or   an  employment.     Thus,   for  example,   the       >-^,^ 
United  States  Supreme  Court  has  held  that  no  one 
can  be  an  officer  of  the   United  States  government   v"-^^    \^ 
unless  he  be  appointed  as  the  constitution  provides, 
V2Z.,  by  the  President  and  Senate,  the  President  alone, 
one  of  the  United  States  courts,  or  the  head  of  an  ex- 
ecutive   department/     Furthermore,    particular  stat- 
utes  are  sometimes  so  framed  as  to  indicate  that  the     /r^ 
legislative   intention   is  to   confine  or  to  extend  the    ^^y^''^ 
conception   of  officers   contrary   to   the  general  rule         ♦  rv 
which  has  been  set  forth.^  a_ 

11. — Methods  of  organizing  offices.  ^^-^ 

Official  authorities  differ  in  the  way  in  which  they 
are  organized.  Thus,  an  official  authority  may  con- 
sist of  one  person  or  of  more  than  one  person.  In 
the  first  instance,  while  one  person  may  not  do  all  the 
work  of  the  office,  while  he  may  be  assisted  in  the 
performance  of  his  duties  by  many  subordinates  or 
deputies,  who  in  their  turn  may  be  officers,  still  all  the/f, 
acts  of  the  office  which  such  person  holds  are  done 
under  his  direction  and  on   his   responsibility.     The 


'  United  States  vs.  Germaine,  gg  U.  S.,  508.  In  the  case  of  the  United 
States  vs.  Hartwell,  6  Wall,  3S5,  however,  it  was  held  that  one  appointed  with 
the  approval  of  the  head  of  an  executive  department  was  an  officer  under  the 
United  States  constitution. 

''■  See  for  an  example  of  the  influence  which  such  statutes  have  upon  the  de-  A^ 

cisions  of  the  courts  as  to  whether  given  positions  are  or  are  not  offices,  the 
case  of  United  States 7'j-.  Mouat,  124  U.  S.,  303,  and  United  States  vs.  Hendee, 
ibid.,  309,  which  hold,  respectively,  that  a  paymaster's  clerk,  who  was  not  ap-  -- .,,1,,^ 

pointed  by  the  head  of  a  department,  and  whose  position  was  not  provided  for 
by  law,  is  not  an  officer  for  the  purpose  of  mileage,  but  is  one  for  the  purpose 
of  longevity  pay.     See  also  Ex  parte  Reed,  100  U.  S.,  13. 
>5 


226  THE  OFFICIAL  RELATION. 

system  of  offices  founded  on  this  principle  is  some- 
times called  the  single-headed  system. 

Where  an  office  is  held  by  several  persons,  they 
exercise  their  powers  and  perform  their  duties  by 
means  of  resolutions  of  the  entire  body.  In  the  mak- 
ing of  these  resolutions  each  one  of  the  holders  of  the 
office  has  legally  as  much  influence  as  any  of  the 
others,  with  perhaps  the  exception  of  the  president 
of  the  board,  who  may  have  the  right  to  give  the 
casting  vote  in  case  of  a  tie.^  A  system  in  which  the 
official  authorities  are  organized  as  boards  is  called 
the  board  system. 

Each  of  these  plans  of  organizing  offices  has  its 
advantages  and  disadvantages.  The  single-headed 
system  is  well  fitted  for  the  discharge  of  duties  which 
require  energy  and  rapidity  of  action,  and  for  which 
it  is  advisable  to  have  a  fixed  and  well-defined  re- 
sponsibility ;  while  the  board  system  may  be  adopted 
with  advantage  in  all  those  branches  of  administration 
in  which  carefulness  of  deliberation,  regard  for  all 
sides  of  the  case,  and  impartial  decisions  are  particu- 
larly desired.  Boards  are  therefore  often  provided 
for  the  consideration  of  those  matters  in  which  a  con- 
troversy between  individuals  is  to  be  decided,  that  is, 
for  judicial  authorities  ;  while  the  single-headed  sys- 
tem is  often  adopted  for  purely  executive  and  admin- 
istrative authorities.  It  is,  however,  to  be  noticed 
that  for  many  administrative  matters,  the  board  sys- 
tem is  to  be  preferred,  for  the  reasons  which  make 
the  adoption  of  the  board  system  desirable  for  ju- 
dicial authorities.     This   is   particularly  true   in   the 

'  See  for  the  rules  of  law  relative  to  the  action  of  boards,  Mechem,  op.  cit., 
sees.  571-581. 


OFFICES  AND  OFFICERS.  227 

case  of  the  assessment  of  property  for  the  purpose  of 
taxation.  For  these  reasons,  we  find  that  seldom  does 
any  system  of  administration  adopt  either  one  of  the 
two  methods  of  official  constitution  to  the  exclusion 
of  the  other,  but  that  the  attempt  is  usually  made  to 
combine  the  two  forms  in  such  a  way  as  to  produce 
the  best  results. 

///. — Honorary  and  professional  office.s. 

In  the  United  States  we  have  no  very  clear  con- 
ception of  a  professional  ofiice,  that  is,  an  ofiice  the 
incumbent  of  which  devotes  his  entire  time  to  the  dis- 
charge of  public  functions,  who  has  no  other  occupa- 
tion, and  who  receives  a  sufficiently  large  compensation 
to    enable    him    to   live  without    resorting  to    other 
means.    The  nearest  approach  to  such  an  office  made    / 
by  the  American   law  is  what  is  sometimes  known    ^'''*^ 
as  a  lucrative  office.      Opposed  to  the  professional 
office,  as  above  defined,  we  find  the  honorary  office.  '  "^-^    _,,^ 
The  incumbent  of  an  honorary  office  does  not  devote  -a^ 

his  entire  time  to  his  public  duties,  but  is,  at  the  same  / ) 
time  that  he  is  holding  public  office,  permitted   to  /'n~''^H^ 
carry  on  some  other  regular  business,  and  as  a  matter     CU-~-_ 
of  fact    finds    his    main    means    of  support    in    such    ^^<^<-^ . 
business  or  in  his   private  means  since  he  receives     ^'t\.4^,^^ 
from  his  office  a  compensation  insufficient  to  support  _^,^^,j^i 

From  the  incumbent  of  a  professional  or  lucrative   j^X-ut^ 
office,  knowledge  of  the  affairs  to  which  his  official, 
duties  relate  is  often  required  by  law.     In  some  cases  ^,, 

this  requirement  is  carried  so  far  as  to  necessitate  the  A , 

pursuit,  by  the  candidates  for  such  a  position,  of  a    ^"^ 
regular  course  of  professional  instruction.       In   the  ^\^-^*-U 


228  THE  OFFICIAL  RELATION. 

case  of  honorary  officers  no  such  requirements  are 
made.  The  duties  which  are  imposed  upon  such 
officers  are  not  regarded  as  requiring  any  special 
knowledge  on  their  part. 

^^^  ,  A   system  of   administration   which   relies  mainly 

upon  professional  officers   is  termed   a  bureaucratic 

.    .y'ir  y      system  ;    a   system    of    administration    which    relies 

mainly    upon    honorary,   non-professional    officers,  is 

^  sometimes  called  a  self-government  system,  because 

A^^^'^^   government  in  it  is  administered  by  members  of  so- 

.,-^"  ciety  who  temporarily  or  occasionally  discharge  public 

functions.      In  the  United  States  our  system  of  admin- 
istration is  formed  by  a  combination  of  professional 
and  honorary  officers,  the  latter  predominating. 
X       Each  of  these  two  systems,  the  bureaucratic  and  the 
'S;^  self-government  system,  has  its  advantages.    The  spe- 

cial knowledge  and  training  possessed  by  professional 
officers,  their  generally  long  terms  of  office,  and  the 
fact  that  they  are  occupied  exclusively  in  the  man- 
agement of  public  business,  make  it  almost  certain 
that  they  will  act  more  wisely  and  efficiently  than 
officers  who  have  no  special  knowledge  of  their  duties, 
who  serve  for  short  terms,  and  are  expected  to 
devote  only  a  part  of  their  time  to  the  public  service, 
and  make  it  extremely  probable  that  the  cost  of  such 
a  system  will  in  conditions  at  all  complex,  notwith- 
standing the  fact  that  salaries  are  paid,  be  less  than 
the  cost  of  self-government  administration.  If 
wise,  efficient,  and  economical  administration  were  the 
only  or  even  the  main  end  sought  in  the  organization 
of  an  administrative  system,  it  must  be  admitted  that 
the  bureaucratic  system  is  often  preferable  to  the 
self-government  system. 


OFFICES  AND  OFFICERS.  229 

It  must  not  be  lost  sight  of,  however,  that  good 
administration   is   only   one,  and   that  a  minor,  end 
of  an  administrative  system.      It  must  always  be  kept     i->-^— ^ 
in  mind  that  an  important  end  of  all  governmental    /~l     ' 
systems    and    particularly    of    systems    of    popular  ^  q  ^— — 
government  should  be  the  cultivation  in  the  people  [""^y 
of  political  capacity.       History  shows  that  this  end  is  /         A" 
only  imperfectly   attained   by  a  thoroughly  bureau-  /^v\, 
cratic  system.     The  experience  of  almost  every  state         (L, 
which,  to  carry  forward  pressing  reforms  or  to  secure     ^    ^ ' 
administrative  efficiency,  has  adopted  a  bureaucratic  -*- 

system  of  administration,  goes  to  prove  that  bureau- 
cracy is  unfavorable  to  the  development  of  political 
capacity. 

What  the  bureaucratic  system  tends  to  destroy,  the 
self-government  system  tends  to  foster.  The  partici- 
pation of  numerous  citizens  in  the  work  of  adminis- 
tering government  tends  to  increase,  by  the  sure 
method  of  practice,  the  political  capacity  of  the  peo- 
ple. There  are,  however,  some  branches  of  adminis- 
tration in  which  the  inherent  defects  of  the  system 
of  popular,  non-professional  officers  are  very  marked. 
These  defects — vz's.,  extravagance,  inefficiency,  and 
unwise  action — become  so  serious  as  to  force  the 
conclusion  that  in  some  branches  the  self-eovernment 
system  is  impossible  of  application.  There  are 
many  positions,  for  example,  in  the  municipal  adminis- 
trative services — positions  which  are  increasing  in 
number  with  the  enlargement  of  the  city's  sphere  of 
activity — which  require  great  technical  knowledge, 
and  whose  duties  are  so  arduous  as  to  occupy  the 
entire  time  of  the  incumbents.  Here  it  seems 
necessary  to  demand  of  the  incumbents  a  professional 


230  THE  OFFICIAL  RELATION. 

training  and  to  pay  them  salaries.^  Bureaucracy  is 
made  necessary  by  the  conditions  of  the  case.  The 
question  is  not  whether  we  shall  have  a  bureaucracy 
— for  we  must  in  the  nature  of  things  have  it, — but 
how  we  shall  organize  it  so  as  to  give  it  the  best  pro- 
portions possible  and  avoid  the  evil  results  by  which 
it  is  so  generally  attended.  Especially  must  care  be 
taken  not  to  organize  the  bureaucracy  on  principles 
which  are  applicable  to  the  self-government  system. 
If  salaries  are  to  be  paid,  professional  knowledge  and 
the  devotion  of  the  entire  time  of  the  officer  to  the 
work  of  the  office  should  be  required.  Further,  since 
the  impossibility  of  such  an  officer's  earning  his  living 
in  any  other  way  is  the  only  reason  why  a  salary  should 
be  paid,  long  terms  of  office  should  take  the  place  of 
the  short  terms  of  the  self-government  system.  What 
should  be  a  profession  should  not  be  allowed  to 
degenerate  into  a  trade. 

o 

'  C/.  President  Eliot  in  The  Forum,  October,  1891,  on  "One  Remedy  foi 
Municipal  Misgovernment." 


CHAPTER  II. 

THE    FORMATION    OF    THE    OFFICIAL    RELATIOA\ 

/. — Appointment  or  election. 

The  two  most  important  methods  of  forming 
the  official  relation  are  appointment  and  election. 
Originally  the  common  method  of  filling  offices  in 
the  United  States  was  by  executive  appointment. 
The  only  exception  to  this  rule  was  to  be  found  in 
the  case  of  the  town  officers.  Partisan  use  was 
early  made  of  the  power  of  appointment  in  the  state 
of  New  York.  Each  new  party  that  came  into 
power  felt  that  it  was  its  right  if  not  its  duty  to  fill 
all  the  offices  to  which  appointment  might  be  made 
with  its  own  adherents  and  to  make  places  for  them 
by  the  discharge  of  existing  officers/  This  habit 
was  not  confined  to  the  state  of  New  York,  but  after- 
wards made  its  way  into  the  national  administration, 
and  thus  spread  to  every  one  of  the  states.  The  evils 
resulting  from  such  a  practice  led  the  people  very 
generally  to  change  the  method  of  forming  the  official 
relation  in  the  state  governments.  Many  of  the  offices 
were  made  elective.  The  movement  continued  from 
1825  to  1850,  with  the  final  result  that  almost  all  the 
important  offices,  both  in  the  central  state  government 
and  in  the  localities,  were  filled  by  popular  election. 

'  Gitterman,  "  New  York  Council  of  Appointment,"  P.  S.  Q.,  vii.,  80. 

231 


232  THE  OFFICIAL  RELATION. 

Since  1850,  however,  there  has  been  somewhat  of 
a  reaction  in  favor  of  the  former  method  of  executive 
appointment,  the  reason  being  found  in  the  fact  that 
the  method  of  election  did  not  have  the  beneficial 
results  which  were  expected  of  it.  No  change  in  the 
original  method  of  forming  the  official  relation  was 
m?de  in  the  national  administration,  not  because  the 
same  evils  were  not  present  here  as  were  present  in 
the  states,  but  because  the  method  of  appointment, 
being  provided  by  the  national  constitution,  could  be 
changed  only  with  great  difficulty.  Where  the  method 
of  appointment  has  been  adopted,  the  appointment  is 
not  in  all  cases  to  be  made  necessarily  by  the  chief 
executive,  but  in  many  cases  may  be  made  by  the 
heads  of  the  executive  departments  and  in  the 
localities  by  the  chief  local  authorities. 

The  aims  of  these  two  methods  of  forming  the 
official  relation  are  quite  different.  The  method  of 
appointment  aims  at  administrative  harmony  and 
efficiency.  The  method  of  election  endeavors  to  in- 
sure that  popular  control  over  the  administration 
which  is  one  of  the  fundamental  principles  of  popu- 
lar government.  In  order,  however,  that  such  a 
popular  control  may  be  exercised,  the  people  must  be 
in  a  position  to  judge  intelligently  of  the  merits  of 
the  respective  candidates  for  office.  The  people  are 
undoubtedly  in  such  a  position  in  the  rural  districts, 
where  the  feeling  of  neighborhood  is  strong.  Here 
they  know  the  merits  of  the  candidates  who  present 
themselves  for  office  and  are  able  to  make  a  wise 
choice.  When  we  come,  however,  to  more  com- 
plex conditions,  such  as  exist,  for  example,  in  the  cen- 
tral state    administration  and  in    the    municipalities, 


FORMATION  OF  THE  OFFICIAL  RELATION.    233 

where  the  feeling  of  neighborhood  is  not  strong,  and 
where   it  will  be  difficult,   if  not  impossible,  for  the 
people  to  know  much  about  the  merits  of  the  differ- 
ent   candidates,  it  is    useless  to    adopt    the   elective 
method  in  the  hope  that  the  people  will  by  this  means 
be  able  to  exercise  any  effective  permanent  control 
over  the  administration.     The  only  way  in  which  the 
people  may  exercise  such  a  control  over  the  adminis- 
tration is  for  them  to  elect  only  the  most  prominent 
officers  of  the  government,  who  are  then  to  appoint 
to  the  subordinate  offices.      If  a  long  list  of  candidates-j^^,^  i 
is  presented  to  the  elector  for  his  choice,  if  many  of  ^^v^^ 
the  offices  to  be  filled  by  election  are  of  a  subordinate       /    '' 
or  unimportant  character,   even  the  most  intelligent  /       !^ 
voter  is  apt  to  become  confused.     Other  reasons  than  _ 

the  merits  of  the  candidates  are  apt  to  influence  his    W.''^■* 

choice,  and  the  result  of  the  election  is  apt  to  be  in  p^fi.-'^x^ 

accordance  with  the  wishes  of  those  few  persons  who  C i_ 

have  the  time  and  the  inclination  to  busy  themselves 
with  the  conduct  of  public  affairs,  rather  than  in  ac- 
cordance with  the  real  wishes  of  the  people. 

The  elective  method  of  forming  the  official  relation 
thus  in  many  cases  does  not  secure  the  popular  con- 
trol, which  is  the  purpose  of  its  adoption.  It  not  only 
fails  of  its  purpose  in  these  cases,  but  also  has  one 
or  two  serious  positive  defects.  Through  its  means 
it  is  often  the  case  that  men  of  totally  opposed  views 
on  vital  questions  are  put  into  office  where,  in  order 
that  the  administration  may  be  efficient,  it  is  necessary 
that  it  be  harmonious.  The  necessity  for  harmony 
in  such  matters  is  so  great  that  as  a  matter  of  fact 
the  attempt  is  made  to  attain  it  through  recourse  to 
the  political  party,  which  here,  as  in  so  many  other 


r 


234  THE  OFFICIAL  RELATION. 

instances  in  our  system,  affords  the  only  means  by 
which  our  lack  of  governmental  concentration  may 
be  remedied. 

For  the  central  state  administration  and  the  mu- 
nicipal administration,  the  method  of  forming  the  of- 
ficial relation  should  be  by  appointment,  if  an  efftcient, 
harmonious,  and  responsible  administration,  subject  to 
popular  control,  is  desired.  This  is  the  method  which 
has  been  so  successfully  adopted  in  the  national  ad- 
ministration. This  is  also  the  method  which  has  been 
adopted  by  most  of  the  recent  municipal  charters  for 
the  larger  cities  in  the  United  States. 

Further,  the  elective  method  of  filling  offices  is,  in 
Jf—    all  instances,  unfitted  for  offices,  the  efftcient  perform- 
^/^        ance  of  whose  duties  requires  the  possession  by  the 
Q        incumbents  of  large  professional  or  technical  knowl- 
t/^         edge.      Such  offices  are  those  of  judge,  law  officer, 
V  civil  engineer,   etc.     The  requirement  of  the  posses- 

\  sion  by  the  incumbents  of  these  positions  of  certain 
**  degrees  or  certificates,  which  are  supposed  to  evidence 
the  necessary  qualifications,  is  not  really  sufficient. 
For  the  people,  even  if  their  choice  is  thus  confined, 
are  here  again  not  in  a  position  to  choose  wisely. 
Public  inclination  is  too  apt  to  be  swayed  by  other 
than  scientific  reasons.  Such  a  method  may  shut  out 
absolute  ignorance  from  the  office  ;  it  will  not,  how- 
ever, usually  result  in  the  choice  of  the  best  man  for  the 
office. 

//. —  The  law  of  elections. 

I .  Right  of  legislature  to  regulate  elections. — Subject 
to  the  limitations  contained  in  the  fifteenth  amend- 
ment of  the   United  States  constitution,  which  pro- 


FORMATION  OF  THE  OFFICIAL  RELATION.    235 

vides  that  the  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  on  account  of 
race,   color,   or  previous   condition  of  servitude,  the 
ri^ht  to  vote  in  both  national  and  state  elections  is  to 
be  determined  by  the  states.^     As  a  general  thing,  the 
right  to  vote  is  determined  by  the  state  constitution. 
Where  the  state  constitution  has  defined  who  shall-'      ,^ 
have  the  right  to  vote,  the  state  legislature  may  not-^-^-^-tir^ 
add  to  or  diminish  the  qualifications  thus  provided.^  ^     , 
Where,  however,  it  is  clearly  the  intention  of  the  con-'^^^V^  ' 
stitution  to  confine  the  effect  of  its  provisions  to  state  /<^    rs^ 
elections,    the   legislature   may,   under   the   ordinary 
state    constitution,     provide    qualifications,    such    as     Cif^'^ 
property  qualifications,    for   elections    for  local    and 
municipal  offices,  and  for  elections  to  determine  what 
action  shall  be  taken  by  a  given  municipal  corpora- 
tion, as,  for  example,  elections  to  determine  whether 
bond  issues  shall  be  made.^ 

The  legislature  may,  however,  provide  reasonable 
regulations  regarding  the  exercise  of  the  right  to 
vote.  Thus,  the  legislature  may  provide  for  the 
registration  of  voters  where  such  registration  is  not 
required  by  the  constitution.'*  But  registration  laws 
are  not  generally  regarded  as  constitutional  where 
they  absolutely   deprive  an   elector  of  the  right  to 

'  Kinneen  vs.  Wells,  144  Mass.,  497. 

'  Risonz/j.  Farr,  24  Ark.,  161  ;  87  American  Decisions,  53  ;  Coffin  vs.  Com- 
missioners, 97  Mich.,  188.  Thus,  if  the  constitution  requires  thirty  days'  resi- 
dence, a  statute  which  prescribes  as  a  qualification  for  voting  a  residence  of 
ninety  days  is  unconstitutional.  People  vs.  Canaday,  73  N.  C,  198  ;  21  Ameri- 
can Reports,  465. 

'  Hanna  vs.  Young,  84  Md.,  179  ;  57  American  State  Reports.  396 ;  Spitzger 
vs.  Village  of  Fulton,  172  N.  Y.,  285  ;  Mayor  vs.  Shattuck,  19  Colo.,  104;  41 
American  State  Reports,  208. 

*  Capen  vs.  Foster,  12  Pickering,  485  ;  23  American  Decisions,  632. 


I 


2x6  THE  OFFICIAL  F. ELATION. 


vote,  unless  registered  on  one  of  three  or  four  days, 
the  last  one  being  ten  days  or  thereabouts  prior  to 
the  election.'  Where  reo-istration  laws  are  reg-arded 
as  constitutional,  it  is  held  that  they  may  be  adopted 
for  portions  of  the  state,  and  need  not  necessarily  be 
made  to  operate  through  the  entire  state.^ 

2.  Method  of  votmg. — The  original  method  of 
voting  at  elections  was  viva  voce.  This  was  the  rule 
in  Enorland  at  the  time  the  North  American  colonies 
were  established,  and  remained  the  rule  in  England 
up  to  the  passage  of  the  ballot  act  of  1872.  There 
were,  it  is  said,  however,  even  in  England,  cases 
where  voting  papers  or  ballots,  as  they  came  to  be 
called,  were  used  at  a  very  early  time.^  Similar  in- 
stances of  voting  by  ballot  are  to  be  found  in  the 
colonies,  but,  as  a  general  thing,  these  methods  were 
adopted,  not  so  much  to  secure  a  secret  vote,  as  to 
further  the  convenience  of  the  inhabitants,  who  were 
thus  permitted  to  vote  by  proxy. 

The  use  of  the  ballot,  as  a  means  of  securing  a 
secret  vote,  seems  to  have  originated  in  the  state  of 
New  York.'*  For  quite  a  time,  however,  after  the 
adoption  of  the  ballot,  the  ballot  was  simply  a  paper 
drawn  up  in  such  form  as  the  individual  voter  desired, 
and  contained  the  names  of  the  candidates  for  whom 
r/)  the  voter,  casting  such  ballot,  desired  to  vote.^  The 
desire  which  was  at  the  bottom  of  the  adoption  of  the 

'  See  Attorney-General  vs.  Common  Council  of  Detroit,  78  Mich.,  545  ;  18 
American  State  Reports,  458  ;  contra  People  vs.  Hoffman,  116  111.,  587. 

"^  See  Patterson  vs.  Barlow,  60  Pa.  State,  54. 

^  Ford,    The  Rise  and  Growth  of  American  Politics,  p.  6. 

^  See  Constitution  of  1777,  art.  6. 

^  "  The  ballot,  in  the  modern  sense  of  a  party  ticket  put  into  the  hands  of 
voters,  is  a  comparatively  late  development.  In  1794,  John  Adams  extenuated 
a  '  very  unwarranted   and   indecent   attempt     ,     .    .     upon  the   freedom  of 


FORMATION  OF  THE  OFFICIAL  RELATION.    237 

system  of  voting  by  ballot,  namely,  to  secure  secrecy 
in  voting,  was  not,  however,  realized  by  the  mere 
provision  that  election  should  be  by  ballot.  This  was 
so,  because  it  was  possible,  after  the  ballot  became  an 
instrument  in  the  hands  of  the  party,  to  provide  a 
ballot  which  had  distinctive  marks  upon  it,  and  at  the 
time  of  the  count  of  the  votes  to  ascertain  the  way  in 
which  the  voters  voted.  The  legislatures  of  many  of 
the  states,  therefore,  passed  laws  regulating  the  form, 
color,  size,  and  general  characteristics  of  the  ballot, 
and  prohibiting  the  counting  for  any  candidate  of 
ballots  cast  for  him  which  did  not  comply  with  the 
law.  Such  statutes  at  once  gave  rise  to  judicial  de- 
cisions as  to  the  power  of  the  legislature  in  this 
respect.  It  has  been  almost  universally  held  by  the 
courts  in  interpreting  such  statutes,  that  it  is  within 
the  power  of  the  legislature,  in  the  exercise  of  its 
right  reasonably  to  regulate  the  franchise,  to  desig- 
nate in  great  detail,  where  such  designation  is  neces- 
sary to  secure  a  secret  ballot,  the  characteristics  of  a 
legal  ballot.^ 

The  method  of  voting,  in  accordance  with  which 
ballots  were  provided  by  private  initiative  and  put 
into  the  hands  of  the  voter  by  the  agents  of  the 
parties,  was  not,  however,  satisfactory  in  producing 
the  desired  secret  vote,  notwithstanding  all  of  the 
provisions  of  the  statutes,  and  the  rather  strict  inter- 
pretation put  upon  them  by  the  courts  in  order  to 

election'  committed  by-his  own  party,  on  the  ground  that  '  the  opposite  party 
.     practise    arts   nearly  as  unwarrantable  in  secret,  and  by   sending 
agents  with  printed  votes.'"     Adams's  Works,  vol.  i.,  p.  474;  quoted  from 
Ford,  The  Rise  and  Growth  of  American  Politics,  p.  7. 

'  State  vs.  Phillips,  63  Texas,  390  ;  51  American  Reports,  646  ;   IVople  vs. 
Board  of  Canvassers,  129  N.  Y.,  395. 


<^ 


238  THE  OFFICIAL  RELATION. 

secure  the  desired  secrecy.  Because  of  this  fact,  as 
well  as  because  of  the  great  expense  to  which  the 
/'parties  were  put  in  order  to  pay  for  the  ballots  used, 
the  system  of  voting  known  as  the  Australian  system 
was  adopted.  The  characteristics  of  this  system  were 
that  the  ballot  to  be  used  was  to  be  an  official  ballot, 
printed  by  the  state,  and  distributed  by  state  officers. 
The  voter  was  required  to  mark  upon  the  ballot  so  as 
to  indicate  the  name  of  the  candidate  for  whom  he 
desired  to  vote,  a  cross  which,  in  accordance  with  the 
provisions  of  the  law,  was  to  be  made  either  by  a 
stamp,  a  pencil,  or  a  pen.  Several  interesting  ques- 
tions have  arisen  in  connection  with  this  system,  as  to 
how  far  the  legislature  may  limit  the  freedom  of  the 
voter  in  marking  the  ballot.  In  their  decisions  of  the 
questions  arising  under  these  statutes  the  courts  have 
naturally  been  very  largely  governed  by  the  wording 
of  the  statute  which  was  beinof  considered.  On  this 
account  there  appears  at  first  blush  to  be  considerable 
conflict  in  their  decisions  as  to  what  marks  are  to  be 
regarded  as  distinguishing  marks,  and  thereby  as  in- 
validating the  ballot  upon  which  they  may  appear. 
But  in  general  it  may  be  said  that,  where  it  is  the  evi- 
dent intention  of  the  legislature  to  declare  invalid  any 
ballot  which  is  marked  contrary  to  its  provisions,  and 
where  such  marking  will  result  in  making  possible  the 
identification  of  the  ballot,  the  ballot  containing  such 
improper  marks  will  be  regarded  as  illegal,  and  will 
not  be  counted.^ 

'  See  People  vs.  Board  of  Canvassers,  129  N.  Y.,  395  ;  Taylor  t-j.  Bleakley, 
55  Kansas,  i  ;  49  American  State  Reports,  233  ;  State  vs.  McElroy,  44  La. 
Annual,  796  ;  32  American  State  Reports,  355  ;  see  also  monographic  note 
upon  the  distinguishing  marks  which  will  invalidate  a  ballot  under  the  or- 
dinary   Australian    ballot    lawr   in    49   American  State  Repons,   240.      It  has 


FORMA  TION  OF  THE  OFFICIAL  RELA  TION.    239 

3.  Election  regulations  directory. — As  a  general 
thing,  it  is  held  that  election  regulations  made  by  the 
legislature,  which  do  not  attempt  to  secure  the  secrecy 
of  the  ballot,  are  to  be  regarded  as  directory  rather 
than  mandatory — that  is,  their  violation,  provided 
the  will  of  the  voter  is  clearly  expressed,  will  not  in- 
validate the  election.  Thus,  it  has  been  held  that, 
where  the  law  provides  that  the  ballot  shall  be  of  plain 
white  paper,  through  which  the  printing  or  writing 
cannot  be  read,  ballots  printed  on  colored  paper, 
given  by  mistake  to  all  of  the  electors  of  a  given  dis- 
trict, are  not  illegal  ballots,  because  the  secrecy  of  the 
ballot  is  not  interfered  with  by  the  use  of  such 
ballots.^ 

The  general  rules  with  regard  to  elections  are  that 
the  election  must  be  regular — that  is,  must  be  held  at 
the  time  and  place  appointed  by  the  proper  authority. 
This  authority  may  be  the  constitution,  the  statute,  or 
an  administrative  act  done  in  pursuance  of  the  statute.^ 
In  the  second  place,  notice  of  the  time  of  election  does 
not  seem  to  be  necessary,  even  when  expressly  re- 
quired by  statute,  except  where  such  notice  is,  in  the 
nature  of  things,  necessary,  in  order  that  the  voter 
may  know  that  an  election  is  to  take  place.  Thus, 
the  failure  to  give  notice  of  a  general  election,  though 
required   by   law,    will    not   invalidate   the    election.^ 

however,  been  held  that  the  legislature,  in  its  desire  to  secure  secrecy,  may  not 
provide  a  system  of  voting  by  which  it  is  impossible  for  an  illiterate  person  to 
vote,  where  the  constitution  makes  no  provision  for  an  educational  qualification 
for  voting.     Rogers  vs.  Jacobs,  88  Kentucky,  502. 

'  Boyd  vs.  Mills,  53  Kansas,  594  ;  42  American  State  Reports,  306  ;  see  also 
De  Berry  vs.  Nicholson,  102  N.  C,  465  ;   ri  American  State  Reports,  767, 

'Brewer  vs.  Davis,    9    Humphrey,  Tenn.,  208;    Stephens  vs.   People,    89 

III..  337. 

*  People  vs.  Hartwell,  12  Mich.,  508. 


240  THE  OFFICIAL  RELATION. 

But  a  special  election  would  not  be  regarded  as  valid 
in  case  no  notice  of  it  was  given. ^  While  notice  of 
the  time  of  election  is  not  always  necessary,  notice  of 
the  place  of  holding  the  election  seems  to  be  abso- 
lutely necessary.  Indeed,  statutory  provisions  as  to 
the  place  of  elections  are  regarded  as  mandatory 
rather  than  directory.  Failure  to  observe  them  will 
generally  invalidate  an  election.^ 

4.  Duties  of  election  officers  ministerial. — At  every 
election  officers  are  provided,  generally  known  as  in- 
spectors of  elections,  whose  duty  it  is  to  receive  all 
legal  votes.  The  duties  of  these  officers  are  pre- 
scribed in  detail  in  the  election  laws,  but  under  the 
election  laws  which  have  generally  been  passed  the 
duties  of  such  officers  are  ministerial  and  their  per- 
formance of  them  is  subject  to  the  review  of  the 
courts.^  Notwithstanding  the  fact,  however,  that  the 
duties  of  such  officers  are  thus  ministerial,  it  has  been 
almost  universally  held  that  the  reception  of  illegal 
votes  will  not  void  the  election,  unless  it  is  shown 
that  their  reception  affected  the  result.^ 

After  the  votes  have  been  received  they  are 
counted  ;  sometimes  by  the  officers  who  have  received 
them,  but  commonly  by  officers  known  as  judges  of 
elections,  and  frequently  chosen  from  the  parties 
which  have  candidates  for  election  in  the  field.^  In 
counting  the  ballots  the  judges  of  elections  have,  of 

■  Secord  vs.  Foutch,  44  Midi.,  89  ;  State  vs.  Gloucester,  44  New  Jersey  Law, 

137- 

*  Melvin's  Case,  68  Pa.  State,  333. 

^  People  vs.  Pease,  27  N.  Y.,  45  ;  84  American  Decisions,  242. 
■•  People  vs.  Cicott,  16  Mich.,  243  ;  97  American  Decisions,  141. 

*  The  selection  of  the  judges  of  elections  from  the  two  principal  parties  is 
made  obligatory  in  New  York  by  the  constitution  ;  see  Constitution,  1894,  art. 
ii.,  sec.  6. 


FORMATION  OF  THE  OFFICIAL  RELATION.    241 

course,  to  judge  in  the  first  instance  of  their  legality, 
but  their  decision,  as  that  of  the  inspector  in  receiv- 
ing the  vote,  is  not  conclusive.^     After  the  returns 
have  been  made  out  by  the  judges  of    elections  in 
election  districts,  they  are  sent  to  the  boards  of  can- 
vassers acting  for  districts  larger  than  those  in  which 
the  vote  was  taken.     These  officers  examine  the  re- 
turns in  order  to  determine  which  of  the  candidates 
has  the  greatest  number  of  votes.     There  are  thus 
boards  of  town  and  city  canvassers  who  canvass  all 
the    returns    for   town    and   city   officers,    boards  of 
county  officers   who   canvass  all  returns  for  county 
and  state  officers,  and  boards  of  state  officers  who 
canvass    all    returns    for    state    officers.      It    is    uni- 
versally held  that  the  powers  of  such  boards,  acting 
merely  as  boards  of  canvassers,  are  ministerial — that 
is,  their  powers  consist  in  adding  up  the  returns  as 
sent  in  by  the  judges  of  elections  of  the  various  elec- 
tion districts,  or  those  of  the  lower  canvassing  bodies. 
While  the  inspectors  of  elections  have  of  necessity 
the  duty  of  determining,  subject  to  the  review  of  the 
courts,  the  question  whether  a  given  vote  is  a  legal 
vote  or  not,  boards  of  canvassers  are  not  usually  per- 
mitted by  the  statutes,  as  interpreted  by  the  courts,  to 
go  back  of  the  returns  as  sent  to  them  by  the  judges 
of   elections.'^     It  has  even  been  held  that  where  a 
board  of  canvassers  has  adjourned  sine  die,  the  court 
has  the  right  to  require  it  to  reassemble  and  correct 
the  canvass.^     But  in  the  absence  of  such  a  direction 
from  the    court  the  canvassing  board  is  held  to  be 

'  People  vs.  Van  Cleve,  i  Mich.,  362. 

*  Lewis  vs.  The  Commissioners  of  Marshall  County,   16  Kansas,   102  ;    22 
American  Reports,  275. 

2  Florida  vs.  Gibbs,  13  Fla.,  55  ;  7  American  Reports,  233. 
16 


242  THE  OFFICIAL  RELATION. 

functus  officio  after  it  has  made  its  canvass,  and 
has  no  right  to  reconvene  and  correct  errors  in  its 
decisions/ 

This  rule  as  to  the  ministerial  character  of  their 
duties  is  true  with  reofard  to  state  canvassinof  boards.'^ 
If,  however,  the  governor  of  the  state  is  a  member  of 
the  board  of  state  canvassers,  its  determination  is 
beyond  judicial  review  by  means  of  a  direct  action 
against  the  board  to  compel  them  to  correct  any 
return  that  they  have  made.^ 

5.  Methods  of  representation. — The  difficulty  un- 
^^  '  der  the  ordinary  methods  of  representation  of  secur- 
fi^  ;  ing  adequate  representation  of  the  voters  has  led  to 

various    attempts    to    secure    the    representation    of 
'^J^         minorities.     Only  two  such   methods  appear  to  have 
•y  been  adopted  in  this  country.      They  are  known  as 

limited  voting  and  cumulative  voting.  Limited  vot- 
ing consists  in  confining  the  elector,  in  casting  his 
^-ff .  vote,  where  several  officers  are  being  voted  for,  to  a 
number  less  than  the  whole  number  of  persons  to  be 
elected.  Such  a  method  of  representation  is  regarded 
under  the  ordinary  constitutional  provisions  as  un- 
constitutional, inasmuch  as  it  deprives  the  voter  of 
his  right  under  the  constitution  to  vote  at  all 
elections.* 

Cumulative  voting  provides  that,  where  more  than 

'  Hadley  vs.  Mayor,  33  N.  Y.,  603. 

'  People  ex  rel.  Derby  vs.  Rice,  129  N.  Y.,  461. 

'  Dennett  Petitioner,  32  Maine,   508  ;    54  American   Decisions,  602.       Cf. 
People  vs.  Morton,  156  N.  Y.,  136. 

''State  vs.  Constantine,  42  Ohio  State,  437;  51  American  Reports,  833.     If, 
however,  the  constitution  expressly  permits  such  a  method  of  voting  to  be 
adopted  for  some  of  the  offices  of  the  government,  it  is  held  that  it  may  be 
adopted  by  the  legislature  for  others.     Commonwealth  vs.  Reeder,  171  Penn 
sylvania  State,  505. 


FORMATION  OF  THE  OFFICIAL  RELATION.    243 

one  officer  is  being  voted  for  in  a  district,  each  voter 
shall  have  as  many  votes  as  there  are  persons  to  be 
elected  and  may  distribute  his  votes  as  he  sees  fit. 
Thus  if  there  are  three  officers  to  be  elected,  he  has 
three  votes  which  he  may  distribute  in  one  of  three 
ways  :  he  may  cast  his  three  votes  for  one  candidate,        l/V-^ 
or  he  may  cast  one  vote  for  three  candidates,  or  he  ,i»»-v-v   <u^ 
may   cast  one  and  a  half  votes  for  two  candidates.     L  Ni4tt 
This  is  the  method  which  has  been  adopted  by  the     .    (j  9 
constitution    of    Illinois    for   elections    to    the    lower    Ot  '^^ 
house  of  the  state  legislature.     Where  the  constitu- 
tion   has  not  made  specific  provision  for  it,   it  has, 
however,  been  held  to  be  unconstitutional.^ 

Another  method  of  securing  minority  representa- 
tion  is  the  method  known  as  proportional  represen-    fW-tj-^-- 
tation.    This  has,  however,  never  been  put  in  practice 
within  the  United  States  though  it  has  been  made^^'W^^ 
use  of  in  elections  in  Switzerland.^ 

///. —  T/ie  law  of  nominations. 

I.  Parties  originally  voluntary  organizations. — It 
has  already  been  shown  that  originally  the  prepara- 
tion and  distribution  of  the  ballots  were  left  in  the 
hands  of  the  citizens,  who  organized  into  voluntary 
political  associations  known  as  political  parties.  These 
voluntary  associations  not  merely  provided  and  dis- 
tributed the  ballots,  but  also  attended  to  the  prelimi- 
nary   operations    necessary    to    the    nomination    of 

'  Maynard  vs.  Board,  84  Mich.,  228.  But  where  the  constitution  has  pro- 
vided cumulative  voting  for  some  offices  of  the  government,  it  has  been  held 
that  the  legislature  may  provide  it  for  others.       People  vs.  Nelson,  133  111., 

565. 

*  For  a  general  discussion  of  the  various  plans  of  proportional  representation, 
see  Maynard  vs.  Board,  supra,  and  Commons,  Proportional  Representation. 


nc 


244  THE  OFFICIAL  RELATION. 

candidates  for  office.  All  the  necessary  prelimi- 
nary proceedings  were  attended  to  by  these  parties 
originally  and  for  quite  a  time  after  the  forma- 
tion of  the  government,  without  being  subjected,  in 
any  way,  to  the  supervision  of  any  governmental 
orcrans.^ 

From  the  very  beginning  of  the  history  of  parties 
in  this  country,  however,  partly  it  is  believed  because 
of  their  voluntary  character  and  of  their  not  being 
subject  in  any  way  to  governmental  control,  their 
operations  necessary  for  the  nomination  of  candidates 
and  their  conduct  generally  have  been  characterized 
by  both  violence  and  disorder  and  chicanery  and 
fraud. ^  The  frequent  and  long-continued  recurrence  of 
fraud  and  violence  at  primary  meetings  has  resulted  in 
the  abstention  of  the  majority  of  party  members  from 
participation  in  its  deliberations.  This  is  particularly 
true  of  the  cities.^     If,  as  the  result  of  extraordinary 

'  It  is  said  in  the  case  of  Stephenson  vs.  The  Board  of  Election  Commis- 
sioners, ii8  Mich.,  396,  399  :  "From  our  earliest  recollection,  party  politics 
has  always  been  a  matter  of  shrewdness  and  management,  not  always  defen- 
sible ;  yet  the  people  have  been  left  to  deal  with  the  difficulties  as  they  arise. 
It  is  not  to  be  supposed  that  committees  on  credentials,  however  fairly  selected, 
have  always  dealt  justly  ;  and,  no  doubt,  expediency  or  political  exigency  has 
governed  their  actions  to  the  exclusion  of  abstract  justice.  The  remedy  has 
been  either  a  bolt  on  the  part  of  the  dissatisfied,  and  the  selection  of  an  oppo- 
sition candidate  within  the  party,  or  a  refusal  by  the  electors  to  support  the 
nominee  ;  and  the  courts  have  been  careful  not  to  interfere  with  the  application 
of  these  remedies  which  have  usually  been  found  adequate."  See  also  In  re 
Redmond,  25  N.  Y.,  Supplement,  p.  381  ;  Attorney-General  vs.  Drohan,  169 
Mass.,  534  ;  61  American  State  Reports,  301.  In  this  case  it  was  held  that  the 
writ  of  quo  warranto  could  not  be  made  use  of  to  try  title  to  party  office. 
See  also  People  ex  rel.  Trayer  vs.  Lauterbach,  7  Appellate  Division,  N.  Y.,  293, 
which  held  that  the  determination  of  the  party  authority  could  not  be  reviewed 
on  certiorari. 

'  Dallinger,  Nominations  for  Elective  Offices  in  the  United  States,  p.  97. 

^  See  Bernheim,  "Party  Organizations  and  their  Nominations  to  Public 
Office  in  New  York  City,"  P.  S.  Q.,  iii.,  99. 


FORMATION  OF  THE  OFFICIAL  RELATION.    245 

exertions,  the  elements  in  the  party  opposed  to  those 
in  its  control,  secure  possession  of  any  primary  and 
are  thus  enabled  to  elect  delegates  to  the  party  con- 
vention, it  is  frequently  the  case  that  the  regular 
faction,  as  it  is  apt  to  call  itself,  will  nominate  a  con- 
testing delegation.  This  contesting  delegation  often 
receives  recognition  at  the  hands  of  the  highest  party 
authority,  which  is  in  the  control  of  the  regular  party 
organization.  The  acts  of  the  highest  party  authority, 
as  has  been  shown,  have  not  been  in  the  past  subject 
to  the  control  of  the  courts  ;  therefore,  there  has  been 
no  appeal  from  their  determination. 

In  many  instances  the  parties  themselves  have 
recognized  the  evils  by  which  their  system  of  nomi- 
nation and  their  conduct  have  been  attended,  and 
rules  and  regulations  have  been  adopted  by  them 
whose  intention  is  to  prevent  both  violence  and  fraud. 
These  rules  and  regulations  have,  however,  had  prac- 
tically no  sanction  and  have  been  enforced  or  not  as 
suited  the  desires  of  those  in  control  of  the  party 
organization. 

2.  Governmental  control  of  parties. — Because  of  the 
evils  attending  particularly  the  party  system  of  nom- 
inations and  because  of  the  apparent  inability  of 
the  parties  themselves  to  remedy  them,  many  of  the  ^ 
states  of  the  American  Union  have  attempted  to  -. 
regulate  by  legislation  the  nomination  operations  of  \y%^ 
political  parties.  The  attempts  which  have  thus  been 
made  to  remedy  the  evils  complained  of  may  be 
classified  under  two  heads  :  In  the  first  place,  the 
attempt  has  been  made  to  recognize  by  legislation 
the  rules  and  regulations  adopted  by  the  parties  and 
CO  give  to  the  courts  the  authority  to  enforce  them. 


246 


THE  OFFICIAL  RELATION. 


i 


y 


A 


y 


Such  a  method  of  regulating  the  subject  would  appear 
to  be  proper.^ 

The  laws  which  were  thus  passed  in  order  to  give 
the  courts  jurisdiction  to  enforce  the  rules  and  regu- 
lations of  party  authorities  were  not  successful  in 
remedying  the  existing  evils.  Many  of  the  states, 
therefore,  decided  to  pass  legislation  directly  regu- 
lating the  operations  of  the  political  parties.  The 
statutes  passed  with  this  end  in  view  are  of  two  kinds  : 
They  either  recognize  the  convention  system  which 
has  become  the  most  commonly  adopted  system  for 
nominating  candidates,  or  else  they  attempt  to  estab- 
lish what  has  come  to  be  known  as  the  system  of 
direct  nomination,  which  has  also  been  adopted 
voluntarily  in  several  parts  of  the  country  by  the 
action  of  the  political  parties.^ 

Whether  the  states  which  have  attempted  to  regu- 
late this  matter  have  chosen  the  convention  system, 
or  the  direct  nomination  system,  they  have  in  either 
case  found  it  advisable,  if  not  necessary,  to  provide 
some  means  by  which  membership  in  the  party, 
which  carries  with  it  the  right  to  vote  at  the  party 
elections,  shall  be  determined.  They  have  therefore 
either  attempted  to  provide  a  test  of  party  member- 
ship, in  which  case  the  system  of  direct  nomination,  if 
adopted,   will  be  found  in  connection  with  what  is 

'  See  In  re  Guess,  38  N.  Y.  Supplement,  91,  where  it  was  held  that  the 
courts  would  compel  a  political  association  to  place  upon  its  rolls  one  who 
swore  that  he  was  an  adherent  of  the  party  and  its  principles,  that  he  supported 
its  ticket  at  the  last  election  and  intended  to  support  its  principles  and  candi- 
dates in  the  future.  See  also  People  ex  rel.  Spire  vs.  General  Committee,  49 
N.  Y.  Sup.,  723.  In  this  case  it  was  held  that  where  an  enrolment  of  the 
registered  voters  in  the  city,  made  for  the  benefit  of  the  party,  is  by  the  party 
rules  open  to  inspection  to  any  member  of  the  party,  the  right  to  inspect  may 
be  enforced  by  the  courts.  '  See  Meyer,  Nominatives  Systems,  chap.  v. 


FORMA  TION  OF  THE  OFFICIAL  RELA  TION.    247 

known  as  a  closed  primary ;  or  they  have  adopted  a 
system  of  primary  known  as  an  open  primary,  in 
which  any  citizen,  regardless  of  his  previous  party 
affiliations,  is  permitted  to  vote  for  party  nominations. 
The  constitutionality  of  the  first  method,  namely,  that 
of  providing  a  test  of  party  membership,  has  been 
several  times  attacked,  and  has  in  some  instances  been 
denied  where  there  is  in  the  state  constitution  a 
provision  which,  as  interpreted  by  the  courts,  limits 
the  powers  of  the  legislature  relative  to  primary 
elections,  in  that  it  prevents  the  legislature  from  tak. 
ing  certain  action  with  regard  to  all  elections.  While 
there  is  considerable  conflict  among  the  authorities, 
quite  a  number  of  them  regard  primary  elections  as 
within  the  term  "  all  elections,"  particularly  where  the 
expense  of  the  primary  election  is  to  be  defrayed  by 
the  state.^  If  the  courts  regard  primary  elections  as 
subject  to  the  limitations  of  the  constitution,  they 
have  sometimes  held  that  a  statute  of  the  legislature 
which,  for  the  purposes  of  primary  elections,  either 
enlarges  or  contracts  the  right  of  suffrage,  as  given  by 
the  constitution,  is  not  constitutional.^  The  reason- 
ing of  some  of  the  opinions  which  have  thus  declared 
legislation  providing  a  test  for  party  membership  to 
be  unconstitutional,  would  seem  to  indicate  that,  in 
the  absence  of  such  a  constitutional  provision,  the 
court  would  declare  such  legislation  to  be  improper. 
Thus,  in  the  last  case  cited,  the  court  says  :  "  If  such 
a  power  may  be  sustained  under  the  constitution,  then 
the  life  and  death  of  political  parties  are  held  in  the 
hollow  of  the  hand  by  a  state  legislature."  ^ 

'  See  Marsh  vs.  Hanley,  in  Cal.,  368.  ^  Spier  vs.  Baker,  120  Cal.,  370. 

^  But  see  Ladd  vs.  Holmes,  40  Oregon,  167. 


248  THE  OFFICIAL  RELATION. 

On  the  other  hand,  the  courts  have  sometimes  con- 
sidered that  an  act  of  the  legislature  providing  for 
what  has  been  spoken  of  as  an  open  primary  is  un- 
constitutional, because  it  is  "an  unwarrantable  invasion 
of  the  rights  of  political  parties  and  an  innovation  of 
the  rights  reserved  to  the  people  by  the  constitution, 
providing  that  the  rights  enumerated  in 
the  constitution  shall  not  be  construed  to  impair  or 
•deny  others  retained  by  the  people."  ^  Both  of  the 
cases  which  have  thus  denied  the  power  of  the  legis- 
lature either  to  determine  the  test  of  party  membership 
or  to  authorize  any  one,  irrespective  of  his  past  politi- 
cal conduct,  to  vote  at  primary  elections  of  the  party, 
are  California  cases,  and  it  is  not  believed  as  a  general 
thinof  that  the  rule  laid  down  in  these  cases  would  be 
adopted  generally  by  the  courts.  At  any  rate,  in  New 
York  there  has  been  a  primary  law  upon  the  statute 
book  for  a  number  of  years  which  authorizes  an  indi- 
vidual to  place  his  name  upon  the  roll  of  the  party, 
and  to  vote  at  the  primaries  of  that  party,  if  he  has 
not  participated  in  any  other  party  primary  election 
within  a  year.  This  law  has  never  been  directly  con- 
tested, and,  as  will  be  shown,  the  highest  court  of  the 
state  would  appear,  indirectly,  to  have  held  it  to  be 
constitutional. 

In  case  the  legislature  adopts  the  first  method  of 
regulation  to  which  reference  has  been  made,  namely, 
the  maintenance  in  practically  its  present  condition  of 
the  convention  system  of  nomination,  and  recognizes 
a  nomination  made  by  the  convention  of  one  of  the 
parties  which  have  received  recognition  by  the  state 
government,  the  question  has  sometimes  been  raised 

'  Meyer,  op.  cit.,  p.  361  ,  see  also  Britton  vs.  Board,  129  Cal.,  337. 


FORMATION  OF  THE  OFFICIAL  RELATION.    249 

as  to  whether  such  action  is  unconstitutional  as  a  dis- 
crimination against  the  rights  of  smaller  parties — 
parties,  for  example,  which  have  cast  a  percentage  of 
the  vote  at  the  last  election  too  small  to  brinof  about 
their  recognition  as  parties  whose  convention  nomina- 
tions will  be  recognized.  Generally  the  question 
has  been  decided  in  favor  of  the  power  of  the  legis- 
lature. Thus,  it  has  been  held  that  a  law  is  constitu- 
tional which  subjects  merely  the  larger  parties  to  the 
control  of  the  primary  laws  and  forces  the  smaller 
parties,  in  making  a  nomination,  to  resort  to  the  cir- 
culation of  a  nomination  petition.^ 

Where  the  legislature  has  adopted  the  method  of 
nomination  by  convention  as  the  formal  method  of 
selecting  candidates  for  office,  it  has  sometimes  felt 
itself  obliged  to  regulate,  in  considerable  detail,  the 
actions  of  the  parties  and  their  organizations,  and  to 
subject  the  determination  of  party  authorities  relative 
to  these  matters  to  the  control  of  the  courts.  Prob- 
ably the  states  of  New  York  and  Massachusetts  have 
gone  as  far  in  this  direction  as  any  other  states  in  the 
Union.^  The  question  as  to  the  propriety  of  these 
regulations  has  been  settled  in  the  affirmative  by  the 
highest  court  of  the  state  of  New  York.^ 

3.  Direct  nomination.  —  In  some  instances,  as  has 
been  said,  the  legislature  has  attempted  to  replace  the 

'  See  State  vs.  Black,  54  New  Jersey  Law,  446  ;  State  vs.  Poston,  58  Ohio 
State,  620;  Miner  vs.  Olin,  159  Mass.,  487;  DeWalt  i/j-.  Bartley,  146  Pa. 
State,  525  ,  but  see  Britton  vs.  Board,  129  Cai  ,  337. 

*  An  abstract  of  the  law  of  New  York  will  be  found  in  Meyer,  op.  cit.,  p. 
108. 

^  See  People  ex  rel.  Coffey  vs.  The  Democratic  General  Committee,  164  N. 
Y. ,  335.  In  this  case  the  county  committee  of  a  party  attempted  to  expel  3 
member  because  he  had  not  supported  one  of  the  party  candidates,  and  the 
court  reinstated  him. 


250  THE  OFFICIAL  RELATION. 

former  convention  system  by  the  system  of  direct 
nomination.^  Probably  the  most  advanced  legislation 
which  has  been  taken  in  this  direction  has  been  taken 
by  the  state  of  Minnesota,  where  the  system  of  direct 
nominations,  based  upon  an  open  primary,  has  been 
adopted.  This  system  would  appear  to  be  based 
upon  the  following  principles.  In  the  first  place,  no 
one  may  have  his  name  placed  upon  the  official  ballot 
as  a  candidate  for  office  who  has  not  been  nominated 
either  as  the  result  of  a  petition  signed  by  the  requisite 
number  of  persons,  or  as  the  result  of  a  nomination 
election  which  has  taken  place  at  a  direct  primary  of 
one  of  the  parties  whose  actions  are,  under  the 
statute,  subject  to  legislative  regulation.  In  the  case 
of  these  parties,  the  statute  provides  that  at  the  time 
that  the  voter  presents  himself  to  register  for  the  pur- 
pose of  state  elections,  he  shall  be  given  a  ballot  for 
the  purpose  of  the  nomination  elections  of  the  party, 
on  which  he  shall  indicate  his  preference  for  the  can- 
didates of  one  of  the  parties.  No  voter  at  such  a 
time  is  permitted  to  participate  in  the  nomination 
elections  of  more  than  one  party,  but  which  party  he 
shall  affiliate  with  is  a  matter  for  him  to  determine. 
Provision  is  made  further,  by  this  law,  that  any  one  who 
desires  to  be  a  candidate  at  a  nomination  election 
may  file  a  statement  to  that  effect,  accompanied  by  a 
sum  of  money,  the  amount  of  which  varies  with  the 
importance  of  the  office  for  which  he  desires  to  be  a 
candidate.  The  persons  who  receive  the  greatest  num- 
ber of  votes  from  the  members  of  a  particular  party 
are  declared  to  be  the  candidates  of  the  party,  and 
their  names  are  then  put  on  the  official  ballot  at  the 

'  See  Meyer,  Nominating  Systems,  part  ii. 


FORMATION  OF  THE  OFFICIAL  RELATION.    251 

election.     This  takes  place  within  a  reasonable  time 
after  the  completion  of  the  nomination  elections.^ 

These  are  in  the  main  the  methods  which  have  been 
adopted  to  remedy  the  evils  accompanying  purely 
voluntary  nominations  of  the  political  parties.  It  is 
somewhat  difficult  to  say  which  has  proved  the  more 
successful.  It  is  certainly  the  case  that  in  New  York 
the  action  of  the  parties  is  much  more  considerate  of 
the  wishes  of  the  majority  of  the  party  members  than 
it  was  prior  to  the  passage  of  the  statute  regulating 
primaries.  At  the  same  time  it  cannot  be  said  that 
the  control  of  the  parties  has  been  changed  to  any 
great  extent.  The  same  persons  who  were  in  control 
of  the  parties  prior  to  the  advent  of  the  legislation 
would  appear  to  be  in  control  now,  though  it  would 
seem  that  their  actions  are  less  arbitrary  than  they 
once  were.  In  the  case  of  the  Minnesota  law,  greater 
changes  in  party  control  would  appear  to  have  been 
made.  The  system  of  direct  nominations,  however, 
is  accompanied  by  the  great  disadvantage  that  in 
almost  all  cases  the  nomination  is  the  result  of  a 
plurality  of  votes,  which  is  not  a  majority  of  the  votes 
of  all  the  members  of  the  party.  Furthermore,  it  is 
said  that  the  nomination  campaign  is  a  very  expensive 
one,  and  many  believe  that  the  tendency  of  this 
method  of  nomination  is  to  put  into  office  persons 
who  are  notorious  rather  than  famous. 

4.  Effect  of  Australian  ballot. — Finally,  the  mere 
introduction  of  the  Australian  ballot  has,  in  many 
cases,  brought  about  the  subjection  of  the  nomination 
actions  of  the  parties  to  the  control  of  the  courts,  even 

'  For  a  discussion  of  this  method  of  nomination  see   Chicago   Conference  for 
Good  City  Government,  p.  321  et  seq. 


252 


THE  OFFICIAL  RELATION. 


where  no  such  control  has  been  expressly  provided 
for  by  the  legislature.  For  example,  the  courts  have 
sometimes  regarded  themselves  as  authorized,  in  case 
there  is  a  contest  between  two  factions  of  a  party 
with  regard  to  the  nomination  of  a  candidate,  to  de- 
termine which  one  of  the  factions  represents  the  party. 
Thus,  they  have  in  some  instances  held  that  nomina- 
ting conventions  must  be  regularly  called,  and  the 
delegates  thereto  must  be  regularly  chosen  ^ ;  that  the 
nominating  election  must  be  fairly  conducted^;  and 
that  a  convention  must  meet  at  the  place  fixed  by 
the  rules  of  the  party.^  In  some  cases,  however, 
the  courts  have  held  that  if  the  highest  authority  in  the 
party  has  determined  which  of  the  factions  of  the 
party  is  the  representative  of  the  party,  they  are  con- 
cluded by  such  determination/  In  other  cases  the 
courts  have  refused  to  go  into  the  question  at  all,  and 
have,  where  such  a  contest  has  sprung  up,  ordered 
the  names  of  the  candidates  of  both  factions  of  the 
party  to  be  placed  upon  the  official  ballot,  believing 
that  by  such  action  they  were  permitting  the  people 
to  decide  the  question.^ 

Whatever  may  be  the  method  which  is  adopted,  it 
will  be  noticed  that,  partly  as  a  necessary  result  of  the 
Australian  ballot  acts,  which  have  been  so  universally 
passed,  and  partly  as  a  result  of  primary  or  other 
similar  legislation,  the  parties  have,  in  many  instances, 
assumed    the    position    of   organizations    which    are 


'  State  vs.  Tooker,  18  Mont.,  540. 

'^  Matter  of  County  Clerk,  21  Miscellaneous  Reports  (N.  Y.),  543- 
^  Liggett  vs.  Bates,  50  Pacific  Reporter,  860. 

■*  See  The  Matter  of  Fairchild,  151  N.  Y.,  359;  see  also  Cain  vs.   Page,   42 
Southwestern  Reporter,  336. 

*  See  Stephenson  vs.  Board,  118  Mich.  Reports,  396. 


FORMATION  OF  THE  OFFICIAL  RELATION.    253 

recognized  by  the  government.  They  have,  there- 
fore, to  that  extent  ceased  to  be  what  they  once  were, 
—merely  voluntary  associations,  and  are  subject  more 
or  less  to  ofovernment  retjulation  and  control. 

IV. — The  law  of  appointment. 

As  has  already  been  indicated,  there  is  considerable 
doubt  in  certain  states  as  to  whether  an  appointment 
is   an   executive  act  or   not,   though  the  better  rule 
would  seem  to  be  that  it  is  not  an  executive  act,  but 
an  act  which,  so  far  as  concerns  the  constitution,  may,,^^^^     ^ 
be  performed  for  almost  all  classes  of  offices  by  any 
of  the  three  authorities  of  the  government.^     It  there-         ^ 
fore    follows   that    no    executive    or    administrative 
authority  has  any  inherent  power  of  appointment  in 
the  absence  of  legrislation  to  that  effect,  and  that,  in     / 
the  absence  of  a  constitutional  provision,  the  legisla-    '\f^*^-^ 
ture  may  take  away  the  power  of  appointment  from       Hx-^^wt-j 
any  authority  to  which  it  has  granted  such  power  ^ ; 

and  may  grant  the  power  of  appointing  public  officers  

to  any  authority  in  the  government  or  even  to  a  pri- 
vate corporation.^ 

One  of  the  most  interesting  questions  connected 
with  the  law  of  appointment  is  :  In  what  does  an  ap- 
pointment consist  ?  The  answer  to  that  question  is, 
An  appointment  consists  in  the  choice  by  the  appoint- 
ing authority  of  the  person  appointed.^  This  defini- 
tion, it  will  be  noticed,  lays  emphasis  on  two  things  :  -^  ^\ 
first,  upon  the  choice  of  the  appointing  authority —     r\  I 

•  Supra,  p.  38.  I    ^ 
'  Davis  vs.  The  State,  7  Maryland,  151  ;  61  American  Decisions,  331.                   ^  - 
'Overshiner  vs.  State,  156  Ind.,  187  ;  Sturges  vs.  Spofford,  45  N.  Y.,  466.         vJc>-»^\,<j 

*  Johnston  vs.  Wilson,  2  N.  H.,  202.  6^''"'''Vt>-~^ 


-2.  r 


^^ 


254  THE  OFFICIAL  RELATION. 

that  is,  the  exercise  of  discretion  by  the  appointing 
authority  ;  and,  second,  upon  the  fact  that,  once  that 
choice  is  exercised,  the  power  of  appointment  is  ex- 
hausted. Thus,  it  is  held  that  if  a  power  of  appoint- 
ment is  vested  in  an  authority  by  the  constitution, 
legislation  which  takes  away  from  such  an  authority 
the  exercise  of  discretion  is  unconstitutional.^ 

In  the  second  place,  once  the  choice  of  the  appoint- 
ing authority  has  been  exercised,  the  power  of  such 
authority  is  exhausted — that  is,  if  the  appointing 
authority  has  not  the  power  of  removal,  which  must 
be  regarded  as  a  distinct  power,  it  has  not  the  right 
to  revoke  an  appointment  which  has  once  been  made.^ 
In  case,  however,  the  appointment  consists  in  the 
nomination  by  one  authority  and  the  confirmation  by 
another,  the  appointment  is  not  complete  until  the 
confirmation  by  the  confirming  authority  has  been 
^  secured,  and  it  is  often  provided  by  statute,  as  inter- 
preted by  the  courts,  that  the  appointment  is  not 
complete  until  a  commission  of  some  sort  has  been 
signed  by  the  authority  making  the  appointment. 
This  is  the  rule  in  the  national  administrative  system.^ 
In  such  a  case  the  appointment  may  not  be  said  to 
have  been  made  until  the  appointee  has,  first,  been 
nominated    by    the    appointing    authority,     second, 

'  See  People  vs.  Mosher,  163  N.  Y.,  32.  In  this  case  it  was  held  that  a 
method  of  appointment  which  provided  that  the  appointing  officer  must  select 
some  one  standing  highest  on  a  list  made  up  by  another  authority  was  uncon- 
stitutional where  the  power  of  appointment  was  vested  in  the  appointing  au- 
thority by  the  constitution.  But  where  there  is  no  such  constitutional  provision 
it  is  perfectly  proper  so  to  limit  the  power  of  appointment.  People  vs.  Kipley, 
171  111.,  44. 

"^  .See  Speed  vs.  Common  Council,  97  Mich.,  198  ;  see  also  State  z/j.  Barbour, 
53  Conn.,  76. 

**  See  Marbury  vs.  Madison,  i  Cranch,  137. 


FORMATION  OF  THE  OFFICIAL  RELATION.    255 

confirmed  by  the  authority  authorized  to  confirm  ap- 
pointments, and,  third,  commissioned  by  the  appoint- 
ing authority. 

But  in  the  absence  of  a  statutory  provision  the  com- 
pletion of  the  appointment  is  not  dependent  upon  the 
issue  of  any  commission,  which  is  merely  evidence  of 
the  appointment,  and  is  not  the  appointment  itself ; 
and  where,  as  is  sometimes  the  case,  the  commission- 
ing authority  is  not  the  same  as  the  appointing 
authority,  the  commissioning  authority  may  be  forced 
to  issue  a  commission  to  the  person  who  has  been 
selected  by  the  appointing  authority.^  It  is  not  as  yet 
settled  in  what  form  the  appointment  is  to  be  made — 
whether  it  must  be  made  in  writing,  or  whether  an 
oral  appointment  is  sufficient.^  In  accordance  with 
the  principle  that  the  appointment  consists  in  the 
choice  by  the  appointing  power  of  the  person  ap- 
pointed, the  appointing  authority  has  the  right  to  re- 
voke a  commission  which  has  been,  by  mistake,  issued 
to  the  wrong  person.^ 

V. — Acceptance  of  the  office. 

By  the  common  law  the  acceptance  of  office  would 
appear  to  be  obligatory.*  This  would  seem  to  be  the 
case  even  where  the  statute  provides  a  fine  for  the  re- 
fusal to  accept  office.     In  such  a  case  it  has  been  held 


Q-'-'X^ 


'  See  State  vs.  Crawford,  28  Florida,  441.  J  ,^\ 

*  See  People  vs.  Murray,  70  N.  Y.,  521,  which  holds  that  the  appointment 
must,  in  the  absence  of  statutory  provisions  to  the  contrary,  be  in  writing,  and 
Hoke  vs.  Field,  10  Bush.,  Ky.,  144,  which  holds  that  it  may  be  oral. 

'  See  Gulick  vs.  New,  14  Ind.,  93  ;  State  vs.  Capers,  37  Louisiana  Annual, 
747. 

*  People  z/i'.  Williams,  145  111.,  573  ;  36  American  State  Reports,  514,  and 
monographic  note. 


256  THE  OFFICIAL  RELATION. 

that  payment  of  the  fine  does  not  excuse  the  accept- 
ance of  the  office,  which  may  be  enforced  by  majida- 
mus}  It  has,  however,  been  intimated  that  the 
acceptance  of  an  office  which  will  take  all  the  time  of 
the  incumbent  is  not  obligatory  where  no  provision 
for  compensation  is  made.^  It  has  also  been  held 
that  the  possession  of  one  office  will  justify  the  incum- 
bent in  refusing  to  accept  another,^  and  that  no  one 
can  be  forced  to  accept  an  office,  such  as  a  judicial 
office,  which  will  disqualify  him  for  any  office  in  the 
state  not  a  judicial  one/  It  naturally  follows  from 
what  has  been  said  that  there  is  no  constitutional  ob- 
c  jection  to  a  law  which  makes  acceptance  of  office 
obligatory,  and  imposes  a  fine  for  refusal  to  serve.'' 

When  acceptance  of  the  office  is  not  obligatory, 
some  evidence  of  intention  to  accept  the  office  is 
necessary.^  Qualification  for  the  office  is  regarded  as 
the  best  evidence,^  while  the  failure  to  qualify  is 
regarded  as  evidence  of  refusal  to  accept.^     Accept- 

y*    ,--    ance  is  also  presumed  from  the  exercise  of  the  duties 

/t-  of  the  office.^ 

\  The  old  common-law  rule  of  obligatory  service  has, 

however,  been  much  modified  in  actual  practice,  and, 
while  theoretically  in  force  and  capable  of  application 
by  the  courts,  in  order  to  prevent  an  interregnum  by 

„.  '  Ibid. 

'  See  Hinze  vs.  People,  93  111.,  406. 

'  Hartford  vs.  Bennett,  10  Ohio  Stale,  441. 

*  Smith  vs.  Moore,  90  Ind.,  294. 

*  Brooklyn  w.  Scholes,  31   Hun.   N.  Y.,   no;  London  z/j.  Headon,   76  N. 
C,  72. 

*  Smith  vs.  Moore,  90  Ind.,  294,  which  holds  that  acceptance  of  a  nomina- 
tion for  the  office  is  not  such  evidence. 

■"  Ibid..  Johnston  vs.  Wilson,  2  N.  H.,   202. 

*  Thompson  vs.  Holt,  52  Ala.,  491. 
'Johnston  vs.  Wilson,  2  N.  H.,  202o 


FORMATION  OF  THE  OFFICIAL  RELATION.    257 

means  of  which  private  rights  may  be  jeopardized,  is 
seldom  appHed.  Much  more  reHance  is  placed  upon 
voluntaryism  than  formerly.  There  are  still  instances, 
however,  of  obligatory  official  service,  as,  for  example, 
in  the  town  and  county  services,  where  many  of  the 
unpaid  offices  are  obligatory. 

VI. — Officers  de  facto. 

While  it  is  in  general  true  that  the  official  relation 
can  be  formed  only  in  one  of  the  ways  recognized  by 
the  law,  and  that  the  acts  of  persons  who  without 
right  intrude  into  office  are  absolutely  void,  both  as 
against  the  public  and  third  persons,^  it  is  also  a 
general  principle  of  the  common  law,  based  upon 
reasons  of  public  convenience,  that  persons,  who 
though  not  legally  officers  have  yet  acted  under 
color  of  right — that  is,  have  been  declared  elected  or 
appointed,  or  have  held  over  their  term  of  office  in 
good  faith,  or  whose  assumption  of  office  has  been 
for  a  long  time  acquiesced  in  by  the  public,  are 
regarded  for  many  purposes  as  officers,  and  that 
their  acts  will  be  given  the  same  faith  and  credit  in 
proceedings  to  which  they  are  not  parties  as  the  acts 
of  officers  de  jure.  Such  persons  are  called  officers 
de  facto^  While  for  reasons  of  public  convenience 
the  acts  of  officers  de  facto  are  given  in  collateral 
proceedings  to  which  they  are  not  parties  the  same 
faith  and  credit  as  are  given  to  the  acts  of  officers  de 
jure,  officers  de  facto  are  not  permitted  to  build  up 
any  claims  for  themselves  from  the  fact  that  they  have 

'  State  vs.  Taylor,    ro8  N.  C,  196. 

'  See  State  vs.  Carroll,  38  Conn.,  449,  and  cases  cited, 
17 


258  THE  OFFICIAL  RELATION. 

assumed  office.  Thus,  they  cannot  recover  compen- 
sation/ nor  may  they  bring  action  in  their  official 
capacity  without  showing  title,^  nor  may  they,  when 
sued,  escape  responsibiHty  for  an  act  which  may  be 
justified  only  by  title  to  the  office.^  A  third  result  o^ 
this  position  of  officers  de  facto  is  that  they  are  liable 
for  damages  resulting  from  their  negligence,'*  must  per- 
form all  duties  connected  with  the  office  durinof  the 
time  they  assume  to  hold  it,^  and  may  be  punished 
criminally  for  the  commission  of  official  crimes.^ 

The  attempt  has  sometimes  been  made  to  make  a 
distinction  between  de  facto  officers  and  de  facto 
offices.  It  has  been  held,  for  example,  that  there 
can  be  no  such  thing  as  a  de  facto  office,  and  that  in 
order  that  there  may  be  a  de  facto  officer  there  must 
be  a  de  jure  office,"  but  the  rule  supported  by  the 
greater  weight  of  authority,  apart  from  the  authority 
of  the  United  States  Supreme  Court,  would  seem  to 
be  that  a  person  who  holds  a  position  which  has  been 
established  by  an  unconstitutional  law,  should  be  re- 
garded, until  the  law  establishing  the  position  has 
been  declared  unconstitutional,  a  de  facto  o^c^r,  inas- 
much as  he  is  holding  a  position  under  color  of  the 
title  which  comes  from  a  law  which  has  not  been 
formally  declared  unconstitutional.  This  view  of  the 
subject  may  also  be  sustained  upon  the  theory  that 
the  title  to  office  may  not  be  impeached  in  a  col- 

'  Dolan  vs.  Mayor,  68  N.  Y.,  274. 

*  People  vs.  Weber,  86  111.,  283. 

'  Green  vs.  Burke,  23  Wendell,  N.  Y. ,  490,  503. 

*  Longacre  vs.  State,  3  Miss.,  637. 

*  Kelly  vs.  Wimberley,  61  Miss.,  548. 

*  Diggs  vs.  State,  49  Ala.,  311  ;  State  vs.  Goss,  69  Me.,  22  ;  State  ys.  Garde 
ner,  54  Ohio  State,  24. 

'  See  Norton  vs.  Shelby  County,  118  U.  S.,  425,  442. 


FORMATION  OF  THE  OFFICIAL  RELATION.    259 

lateral  proceeding  to  which  the  officer  is  not  a  party, 
even  though  the  ground  of  the  impeachment  is  the 
fact  that  the  position  is  based  upon  an  unconstitu- 
tional law.^ 

*  See  State  vs.  Gardner,  54  Ohio  State,  24 ;  see  also  Burt  vs.  Railway  Com. 
pany,  31  Minn.,  472  ;  American  Law  Review^  January,  1896. 


CHAPTER  III. 

QUALIFICATIONS    FOR    OFFICE. 

/. — The  legislature  may  provide  qualifications. 

The  power  to  hold  office  is  not  regarded  as  a  right 
guaranteed  by  the  constitution  to  all  electors,  but 
rather  as  a  privilege  which  is  given  sometimes  to  all 
citizens  or  electors,  sometimes  to  persons  who  are 
neither  citizens  nor  electors,  and  sometimes  only  to 
certain  classes  of  citizens,  and  is  in  all  cases  subject  to 
the  regulation  of  the  legislature,  in  the  absence  of  a 
constitutional  restriction,^ 

There  are  quite  a  number  of  cases,  however,  which 

'-a/  hold  that  under  the  ordinary  constitutional  provisions 

^  the  legislature  may  not  provide  either  political  or  re- 

^   ligious  qualifications.     Thus  statutes  which  have  pro- 

J  '  ".  Vided  for  commissions,  the  members  of  which  are  to 

be  chosen  from  the  two  leading  political  parties,  have 

usually  been  regarded  by  the  courts  as  improper.^     In 

J  '  State  vs.  McAllister,  38  W.  Va.,  485,  holding  that  a  property  qualification 

may  be  provided  for  by  statute  ;  see  also  Ohio  vs.  Covington,  29  Ohio  State, 
'  102,  holding  that  an  educational  qualification  is  proper. 

'  People  vs.  Hurlburt,  24  Mich.,  44  ;  Attorney  General  vs.  Board  of  Council- 
men  of  Detroit,  58  Mich.,  213  ;  Evansville  vs.  State,  118  Ind.,  426  ;  see  also 
Mayor  of  Baltimore  vs.  The  State,  15  Md.,  376,  and  Brown  vs.  Haywood,  4 
Heiskell,  Tenn.,  357.  It  is  difficult  to  say  from  these  cases  whether  a  law  con- 
taining sucn  provisions  is  in  and  of  itself  unconstitutional — that  is,  whether, 
where  the  appointing  power  chooses  to  conform  to  the  provisions  of  the  stat- 

260 


QUALIFICATIONS  FOR  OFFICE.  261 

order  to  avoid  the  objections  which  the  courts  have  to 
this  method  of  organizing  bi-partisan  commissions, 
the  attempt  has  frequently  been  made  to  provide  for 
commissions,  no  more  than  two  members  of  which,  the 
commission  consisting  of  either  three  or  four  mem- 
bers, may  belong  to  the  same  political  party.  Such  a 
method  of  organizing  commissions  is  regarded  as 
proper.^  In  some  cases,  however,  provision  is  made 
in  the  constitution  for  political  qualifications.  This 
is  the  case,  for  example,  in  New  York,  where  election 
officers  are  to  be  chosen  from  the  two  leading  political 
parties.^  In  such  a  case,  of  course,  no  question  as  to 
the  constitutionality  of  such  qualifications  could  arise. 

//. —  Usual  qualifications. 

The  usual  qualifications  provided  for  officers,  both 
elective  and  appointive,  are  citizenship  or  the  right 
to  vote,  the  attainment  of  a  certain  age,  the  posses- 
sion of  good  character,  and,  for  the  majority  of 
offices,  the  male  sex. 

/.  Citizenship  and  residence. — The  possession  of 
citizenship  does  not  appear  to  be  the  universal  rule 
at  any  rate  in  the  United  States  national  government. 

ute,  the  appointments  made  by  him  are  void.  The  only  case  when  such  a 
matter  could  come  up  squarely  before  the  court  so  that  the  law  could  be  the 
subject  of  judicial  review,  would  be  where  the  appointing  power  refuses  to 
obey  its  provisions.  In  such  a  case  these  cases  would  seem  to  indicate  that 
the  courts  would  not  enforce  the  statute.  The  courts  have  alleged  two  reasons 
for  the  impropriety  of  such  legislation  :  one  is  that  it  is  unconstitutional ;  the 
other  is  that  it  would  be  impossible  for  them  to  determine  whether  a  person 
belonged  to  one  of  two  parties  as  provided  for  in  the  statute. 

'  Rogers  vs.  Buffalo,  123  N.  Y.,  173.  See  also  State  vs.  Hoffman,  ii6  111., 
587.  As  to  the  extent  to  which  political  qualifications  have  been  provided  ir 
the  state  of  New  York,  for  example,  see  Wilcox,  "Party  Government  in  the 
Cities  of  New  York,"  P.  S.  Q.,  Dec,  1889. 

*N.  Y.  Const.,  art.  ii.,  sec.  6. 


262  THE  OFFICIAL  RELATION. 

The  United  States  statutes  seem  to  contain  nothing* 
absolutely  decisive  on  the  point,  although  the  sec- 
tions of  the  Revised  Statutes  which  ofovern  the  form  of 
the  official  oath  ^  seem  to  presuppose  that  citizenship 
is  necessary,  but  nowhere  is  it  expressly  required. 
The  civil-service  law  of  1883  does  not  require  citizen- 
ship but  general  rule  V,  passed  in  execution  of  the 
law,  would  seem  to  require  citizenship  for  the  classified 
service.  But,  apart  from  these  provisions,  the  law 
does  not  seem  to  be  explicit  on  the  point,  and  it 
is  well  known  that  subordinate  positions  in  the 
diplomatic  and  consular  service  are  sometimes  filled 
by  persons  who  are  not  citizens  of  the  United 
States.  In  the  states  the  qualification  of  citizen- 
ship or  of  the  right  to  vote,  which  is  sometimes 
conferred  upon  persons  not  citizens,  would  seem  to  be 
usually  required."^  A  qualification  akin  to  citizenship 
is  residence.  In  the  national  service  there  is  a  pe- 
culiar rule  for  the  classified  departmental  service, 
which  provides  that  appointments  to  the  classified 
public  service  at  Washington  shall  be  apportioned 
among  the  states,  territories,  and  the  District  of 
Columbia  in  accordance  with  the  population  as  fixed 
by  the  last  census.^  In  some  of  the  states,  as,  for  ex- 
ample, New  York  and  Massachusetts,  the  civil-service 
rules  would  appear  to  require  a  residence  in  the  state 
of  one  year  for  positions  in  the  classified  service. 

2.     Age. — It  is  often  provided,  particularly  in  the 
services    classified  under   the   civil-service    laws  and 

'  Sections  1756-7. 

'See  State  vs.  Trumpf,  50  Wis.,  103  ;  but  see  In  the  matter  of  Ole  Mos- 
ness,  39  Wis.,  509,  511,  where  the  court  says  that  extra-territorial  officers,  as, 
for  example,  commissioners  to  take  acknowledgments,  need  not  be  citizens  or 
electors.  ^  See  Laws  1883,  c.  27,  s.  2,  third. 


fjT)         QJt  Qt/ALIFIC A TIONS  FOR  OFFICE.  263 

rules,  that  no  one  shall  enter  the  service  when  he  is 
either  below  or  above  a  certain  age.  The  purpose 
of  these  provisions  is  to  exclude  both  the  too  young 
and  the  too  old.  Thus,  in  the  national  service  the 
limits  of  age  vary  with  the  particular  branch  of  the 
service  from  the  minimum  of  fourteen  for  the  position 
of  page  in  the  departmental  service,  to  the  maximum 
of  fifty-five  for  the  position  of  superintendent  in  the 
classified  Indian  service.^ 

3.  Character. — The  qualification  of  good  charac- 
ter as  a  general  thing  means  nothing  more  than  that 
the  candidate  has  not  been  convicted  of  crime.^  In 
certain  cases,  however,  the  qualification  of  good  char- 
acter is  more  stringent.  The  civil-service  laws  very 
generally  provide  that  no  person  shall  be  appointed 
to  office  who  habitually  uses  intoxicating  beverages 
to  excess.^  The  rules  also  generally  provide  that  no 
person  shall  be  appointed  who  has  beeen  guilty  of 
notoriously  disgraceful  or  infamous  conduct.*  Finally 
it  is  often  provided  in  the  civil-service  rules  that  cer- 

-  tificates  of  good  moral  character  shall  be  presented 
at  the  time  the  application  for  appointment  is  made.^ 

4.  Eligibility  of  women. — It  is  difficult  to  say 
whether  in  the  absence  of  legislative  provision  women 
are  eligible  to  office.  In  Robinson's  case^  it  is  said 
that  the  male  sex  is  required  when  no  provision  as  to 
the  eligibility  of  women  exists,  though  it  is  admitted 
there  is  no  constitutional  objection  to  women  being 

^Nineteenth  Report  U.  S.  Civil  Service  Com.,  p.  60. 

'See  Mechem,  op.   cit.,  §§  77-79,  for   the  usual  disqualification  resulting 
from  conviction  for  crime. 
=  U.  S.  L.,  1883,  c.  27,  §  8. 
*  United  States  General  Rule,  v.,  paragraph  3. 
*See,  e.g.,  U.  S.  I,.,  1SS3,  c.  27,  §  10.  *  131  Mass.,  376. 


r^^ 


264  TIfB  OFFICIAL  RELATION. 

made  eligible  by  statute.^  The  contrary  rule  is,  how- 
ever, laid  down  in  Connecticut.^  Furthermore,  it  has 
been  held  or  intimated  that  a  woman  may  be  ap- 
pointed to  the  position  of  postmistress  and  pension 
agent,^  of  deputy  clerk,**  and  of  master  in  chancery.^ 
Further,  the  United  States  civil-service  rules  seem  to 
presuppose  that  women  will  be  appointed.® 

In  some  instances  the  possession  of  property,  par- 
ticularly real  property,  is  required  in  order  to  be 
eligible  for  local  offices.  As  has  been  shown,  this 
qualification  may  constitutionally  be  made. 

<  * 
-       jj^^     III' — Qualification  of  intellectual  capacity. 

^■fc'  In   the    case   of    offices  of   a  technical   or  profes- 

sional character,  the  law  often  requires  that  the  can- 
didate must  have  undergone  some  course  of  training 
or  must  possess  some  degree  or  certificate.  Thus, 
no  one  but  a  practical  civil  engineer  may  be  elected 
to  the  position  of  state  engineer  and  surveyor  in  New 
York.^  Further,  where  judges  or  prosecuting  officers 
are  elected  by  the  people,  it  is  usually  provided  that 
the  candidates  for  such  positions  shall  be  a  counsellor 
at  law  of  a  certain  number  of  years'  standing.^  In 
the  case  of  appointed  officers,  qualifications  of  in- 
tellectual capacity  are  much  more  stringent  than  they 
are  in  the  case  of  elective  officers. 

*  See  also  115  Mass.,  602,  and  Huff  vs.  Cook  44,  Iowa,  639;  see  also  Ostro 
gorski,  "  Woman  Suffrage,"  etc.,  P.  S.  Q.,  vi.,  677,  707. 

*/«  re  Hall,  50  Conn.,  131. 
3  Hid. 

*  Jeffries  vs.  Harrington,  17  Pacific  Reporter,  505. 

*  Schuchardt  vs.  The  People,  99  111.,  501. 
6  See  Rule  VIII. 
'Constitution,  art  v.,  §  i. 
*See  People  vs.  May,  3  Mich.,  598. 


> 


QUALIFICATIONS  FOR  OFFFCE.  265 

I.  Original  discretion  of  appointing  officers. — Origi- 
nally there  seem  to  have  been  no  legal  requirements 
as  to  intellectual  capacity  in  the  United  States 
civil  service.  The  whole  matter  was  left  to  the  dis- 
cretion of  the  appointing  officers.  No  difificulty 
seems  to  have  resulted  from  the  exercise  of  this  dis- 
cretion until  about  the  middle  of  the  nineteenth  cen- 
tury. The  introduction  into  the  national  service  of 
what  came  to  be  known  as  the  spoils  system  led,  how- 
ever, to  frequent  removals  of  the  incumbents  of  public 
offices  and  to  the  insistance  by  the  appointing  officers 
upon  political  qualifications  on  the  part  of  candidates 
for  office.^ 

The  idea  of  frequent  changes  in  the  official  service 
seems  to  be  traceable  to  President  Jackson,  who  says 
in  his  message  of  December  8,  1829  : 

There  are,  perhaps,  few  men  who  can  for  any  great  length  of 
time  enjoy  office  and  power  without  being  more  or  less  under  the 
influence  of  feelings  unfavorable  to  the  faithful  discharge  of  their 
public  duties.  .  .  .  The  duties  of  all  public  officers  are,  or  at 
least  admit  of  being  made,  so  plain  and  simple  that  men  of  in- 
telligence may  readily  qualify  themselves  for  their  performance; 
and  I  cannot  but  believe  that  more  is  lost  by  the  long  continuance 
of  men  in  office  than  is  generally  to  be  gained  by  their  experi- 
ence. I  submit,  therefore,  to  your  consideration  whether  the 
efficiency  of  the  government  would  not  be  promoted  and  official 
honesty  and  integrity  better  secured  by  the  general  extension  of 
the  law  which  limits  appointments  to  four  years.* 

The  law  to  which  President  Jackson  here  alluded 
was    passed    in    1820    during    the    administration   of 

'  A  good  history  of  this  whole  subject  will  be  found  in  the  Fifteenth  Report  of 
the  United  States  Civil  Service  Commission,  No.  vi.,  p.  443,  entitled  "  Prac- 
tice of  the  Presidents  in  Appointments  and  Removals  in  the  Executive  Service, 
from  1789  to  1883." 

^  Messages  and  Papers  of  the  Presidents,  vol.  ii.,  p.  448. 


^ 


266  THE  OFFICIAL  RELATION. 

President  Monroe.  It  provided  that  certain  officers 
should  be  appointed  for  a  term  of  four  years  but 
should  be  removed  from  office  at  pleasure.  Jackson's 
suggestion  was  adopted  with  the  result  that  almost 
all  officers  in  the  United  States  service  were  given  a 
term  of  four  years. 

2.  Civil-service  laws. — Notwithstanding  the  oppo- 
sition to  this  method  of  fillinor  offices  which  imme- 
diately  arose,  the  method  was  adopted.  It  was 
immediately  followed  by  bad  results,  and  there  is 
hardly  a  year  from  the  time  of  Jackson's  administra- 
tion until  the  passage  of  the  civil-service  law  when  at- 
tempts were  not  made  to  remedy  the  evils  due  to  the 
adoption  of  the  spoils  system  in  the  United  States 
administration.  Thus  in  184 1  a  committee  was  ap- 
pointed by  the  House  of  Representatives  to  examine 
into  the  conditions  of  the  civil  service,  and  reported  in 
favor  of  a  board  of  examinations  which  should  ex- 
amine the  candidates  for  appointment  designated  by 
the  heads  of  departments  as  to  their  character,  moral 
habits,  and  intellectual  capacity.  In  1853,  Congress 
passed  acts  relative  to  appointments  which  provided 
for  a  classification  of  the  clerks  in  the  various  depart- 
ments at  Washington,  and  for  a  pass  examination 
for  entrance  into  the  service.  In  1864,  Mr.  Sum- 
ner introduced  a  bill  to  provide  for  competitive 
examinations.  This  bill  failed  of  passage  and  little 
was  done  except  to  rouse  public  opinion  until  the 
administration  of  President  Grant.  In  his  annual 
message  of  1870  the  President  said : 

I  respectfully  call  your  attention  to  one  abuse  of  longstanding 
which  I  would  like  to  see  remedied  by  this  Congress.  It  is  a  re- 
form in  the  civil  service  of  the  country.    .    .    .    The  present  sys- 


QUALIFICATIONS  FOR  OFFICE.  267 

tern  does  not  secure  the  best  men  and  often  not  even  fit  men  for 
public  place.  The  elevation  and  purification  of  the  government 
civil  service  will  be  hailed  with  approval  by  the  whole  people  of 
the  United  States.' 

In  response  to  this  urgent  appeal,  Congress  passed 
the  act  of  March  3,  1871,  which  gave  the  President 
power  "  to  prescribe  such  regulations  for  the  admis- 
sion of  persons  into  the  civil  service  of  the  United 
States  as  may  best  promote  the  efficiency  thereof."  ^ 
The  attempt  was  made  under  this  statute  to  provide 
competitive  examinations  for  practically  all  subordi- 
nate positions  in  the  service.  In  1874,  however, 
Congress  refused  to  make  an  appropriation  for  the 
work  of  the  commission.  The  commission  practi- 
cally disbanded,  but  competitive  examinations  were 
continued  in  certain  branches  of  the  service,  particu- 
larly in  the  New  York  customs-house  and  post-office. 
In  the  meantime  a  number  of  Presidents  urged  upon 
Congress  the  necessity  of  civil-service  legislation,  and 
finally  in  1883  the  present  civil-service  act  was  passed. 
Since  1883  there  has  been  practically  no  legislation 
upon  the  subject,  but  the  Presidents  have  gradually  !>^.x^il\ 
subjected  more  and  more  branches  of  the  service  to    St-K^^-- 

the  operation  of  the  rules,  so  that  at  the  present  time  ^ 

there  are  over  120,000  positions  subject  thereto,  ap-  „,.-»— 

pointment  to  most  of  which  is  made  as  a  result  of      j 
examinations.^  X^^jl^  , 

Since  the  passage  of  the  United  States  civil-service  /Ja.^--^ 
law  several  states  have  adopted  the  system  either  for  --v-v— »-^ 
the  state  service,  or  for  the  service  of  all  or  particular   ^ 

^Messages,  vol.  vii.,  p.  109,  December  5,  1870. 

*  This  act  was  afterward   incorporated  into   section    1753    of  the  Revised 


Statutes.  /\    ,  • 

^  Nineteenth  Report  of  the  Civil  Service  Commission,  p.  22. 


268  THE  OFFICIAL  RELATION. 

cities  within  the  state  or  for  both.  Thus  in  New 
York  an  act  similar  to  the  United  States  law  was 
passed  on  May  4,  1883.  In  1894,  an  amendment  of 
the  constitution  was  adopted  which  provided  a  system 
of  examinations  for  appointed  positions  in  the  civil 
service  of  the  state  and  all  its  civil  divisions.  Subse- 
quent to  the  adoption  of  the  constitutional  amend- 
ment, the  present  act  of  1899  was  passed.  This  act 
follows  in  the  main  the  principles  of  the  national  law 
of  1883.  In  1884,  an  act  was  passed  in  Massachusetts 
similar  to  the  United  States  law  and  the  New  York 
law.  Statutes  have  been  passed  in  other  states  also 
adopting  the  method  of  appointment  as  a  result  of 
examination  for  all  or  particular  cities  in  the  state. 
This  has  been  done,  for  example,  in  Illinois  for  the 
city  of  Chicago,  and  in  Ohio  for  all  of  the  cities. 

As  a  general  thing  at  the  present  time  the  civil- 
service  law  is  regarded  as  mandatory  and  appoint- 
ments made  in  conflict  with  its  provisions  are  void,^ 
In  the  United  States  national  system,  however,  the 
law  is  not  regarded  as  mandatory  but  merely  author- 
izes the  President  to  adopt  such  rules  as  he  sees  fit  for 
the  regulation  of  appointments  in  the  civil  service. 
The  rules  which  he  adopts  are,  however,  regarded  as 
binding  on  the  heads  of  departments  in  whom  the 
power  of  appointment  is  vested.^ 

The  laws  and  rules  of  the  United  States  do  not 
pretend  to  prescribe  intellectual  qualifications  for  all 
positions  in  the  service  but  specifically  exempt  certain 

'  See  People  vs.  Roberts,  148  N.  Y.,  360. 

'See  United  States  vs.  Perkins,  116  U.  S. ,  483.  As  to  the  constitutionality 
of  civil-service  legislation,  see  Rogers  vs.  Buffalo,  123  N.  Y.,  173  ;  People  vs. 
Kipley,  171  111.,  44,  which  uphold  this  legislation  provided  it  does  not  inter- 
fere with  any  power  vested  in  an  appointing  officer  by  the  constitution. 


QUALIFICATIONS  FOR  OFFICE.  269 

positions  from  the  operations  of  the  rules.  Thus  sec- 
tion 7  of  the  law  provides  that  none  of  the  senate  ap- 
pointments shall  be  classified  for  examination  except 
with  the  consent  of  the  senate,  which,  up  to  the  pres- 
ent time,  has  neither  been  asked  for  nor  given,  and 
that  laborers  shall  not  be  compelled  to  pass  an  exam- 
ination in  order  to  be  appointed  to  positions  in  the 
service.  The  rest  of  the  national  executive  service  is 
at  the  disposal  of  the  President,  who  may  require 
such  intellectual  and  other  tests  for  entrance  into  the 
service  as  he  deems  best. 

3.  Classification  of  civil  service. — The  present  clas- 
sification of  the  civil  service  is  to  be  found  in  Rule 
III.  In  this  it  is  provided  that  the  civil  service  of 
the  United  States  shall  be  arranged  in  branches  as 
follows :  First  the  Departmental  Service ;  second, 
the  Custom- House  Service;  third,  the  Post-Office 
Service  ;  fourth,  the  Government  Printing  Service ; 
and  fifth,  the  Internal  Revenue  Service. 

The  Departmental  Service,  which  is  the  only  branch 
of  the  service  requiring  explanation,  includes  practi- 
cally all  officers  and  employees  except  those  in  the 
other  branches,  embracing  thus  such  services,  in  addi- 
tion to  those  in  the  executive  departments  at  Wash- 
ington, as  the  Railway  Mail  Service,  the  Indian 
Service,  the  Marine  Hospital  Service,  Steamboat 
Inspection  Service,  Pension  Agencies,  Lighthouse 
Service,  Life-saving  Service,  Mints  and  Assay 
Offices,  Revenue  Cutter  Service,  the  force  employed 
under  Custodians  of  Public  Buildings,  the  several 
Sub-Treasuries,  the  Engineer  and  Ordnance  Depart- 
ments at  large,  as  well  as  all  executive  officers  and 
employees   outside  of   the   District  of    Columbia,   of 


2  70  THE  OFFICIAL  RELATION. 

whatever  desiofnation,  who  are  servincr  in  a  subordi- 
nate  capacity  in  the  various  government  offices,  ex- 
cept persons  merely  employed  as  laborers  and  those 
whose  appointment  is  subject  to  confirmation  by  the 
Senate. 

4.  Exempted  positions.  —  The  rules  provide  that  a 
long  list  of  positions  shall  not  be  subject  to  any  of 
the  rules,  with  the  exception  of  those  which  forbid 
the  collection  of  political  assessments,  the  use  of 
official  influence  in  obtaining  appointment,  and  the 
dismissal  of  officers  or  change  in  their  rank  of  compen- 
sation because  of  their  political  or  religious  opinions 
or  affiliations.  It  is  difficult,  from  a  consideration  of 
the  rules  affecting  these  excepted  positions,  to  find 
any  general  principle  upon  which  they  have  been 
based.^ 

'  Among  the  positions  so  excepted  may  be  mentioned,  however,  the  following  : 
Persons  who  do  not  devote  their  entire  time  to  government  business,  and  at  the 
same  time  do  not  receive  more  than  $300  per  annum  from  the  government. 
All  persons  in  the  military  or  naval  service  of  the  United  States  detailed  for 
the  performance  of  civil  duties  ;  persons  employed  in  a  confidential  capacity 
under  any  executive  department  or  other  office  ;  persons  of  a  ^^<aJ■^-military 
or  naval  character,  or  local  physicians  employed  as  Acting  Assistant  Surgeons 
in  the  Marine  Hospital  Service  ;  all  quarantine  attendants.  Finally,  there  is  a 
series  of  positions  in  the  Quarter-Master's  Department  at  Large,  the  Medical 
Department  at  Large,  the  Ordnance  Department  at  Large,  the  Engineer  De- 
partment at  Large,  whose  incumbents  are  in  the  nature  of  laborers,  appoint- 
ments to  which  positions  it  is  specifically  provided  shall  be  made  on  registration 
lists  of  fitness  to  be  prescribed  in  regulations  to  be  issued  by  the  Secretary  of 
War,  with  the  approval  of  the  President. 

Further,  Rule  VI.  provides  for  the  exception  from  the  requirements  of  an 
examination  of  all  private  secretaries,  not  exceeding  two  in  number,  for  the 
President  and  the  various  heads  of  department,  and  one  in  number  for  the 
assistant  heads  of  department  and  heads  of  bureaus  and  the  heads  of  the 
various  local  offices  of  the  United  States  Government,  such  as  Collectors  of 
Customs,  Collectors  of  Internal  Revenue,  District  Attorneys,  Postmasters  of 
the  more  important  Post-Offices  ;  Deputies,  not  exceeding  one  in  number, 
provided  that  they  are  not  employed  in  ordinary  clerical  duties,  of  Customs 
and  Internal  Revenue  Collectors  and  similar  officers  ;  Auditors,  not  exceeding 


Q  U A  LI  PICA  TIONS  FOR  OFFICE.  2  7 1 

The  various  state  and  municipal  civil-service  laws 
and  rules  make  quite  similar  provisions,  although,  of 
course,  the  classification  is  quite  different  in  each 
instance  on  account  of  the  needs  of  the  particular 
service.  The  exemptions  from  examination  made  in 
these  laws  are  based  upon  the  same  principles  which 
have  oroverned  the  national  administration  in  its 
action. 

5.  Laborers. — It  has  been  said  that  the  laws  and 
rules  specifically  except  laborers  from  examination. 
This  exception  was  made  because  of  the  belief  that 
competitive  examinations  were  an  improper  means  of 
ascertaining  the  qualifications  of  a  laborer.  In  Bos- 
ton, however,  soon  after  the  civil-service  act  was 
passed,  provision  was  made  for  the  registration  of 
laborers  and  for  obliging  the  heads  of  departments 
which  employed  laborers  to  select  those  whom  they 
were  to  employ  from  a  registration  list.  This  scheme 
worked  quite  successfully  there,  and  in  1891  was 
adopted  by  the  Secretary  of  the  Navy  of  the  United 
States  for  workmen  employed  at  navy  yards.^ 

one  in  number,  in  the  important  post-offices ;  Paymasters,  not  exceeding 
one  in  number,  in  the  New  York  Customs  District ;  certain  other  specified 
officers,  in  certain  of  the  other  branches  of  the  government,  such  as  a  Mint 
and  Assay  Officer  ;  Storekeepers  and  Gaugers  in  the  Internal  Revenue  Depart- 
ment whose  compensation  does  not  exceed  three  dollars  per  day  when  actually 
employed,  and  whose  aggregate  compensation  shall  not  exceed  $500  per 
annum  ;  and  a  series  of  other  officers  whom  it  is  extremely  difficult  to  classify, 
but  whose  exemption  from  an  examination  or  registration  is  thought  to  be  re- 
quired by  the  necessities  of  the  service. 

'  The  regulations  for  the  registration  of  laborers  in  the  navy  yards  may  be 
taken  as  an  example  of  the  methods  adopted  (see  Fifteenth  Rep.  U.  S.  Civ.  Serv. 
Com.,  p.  94).  By  them  the  applicants  are  obliged  to  furnish  certain  certificates 
with  regard  to  their  character,  no  one  not  having  a  good  character,  as  defined 
in  the  regulations,  being  permitted  to  register.  They  are  registered  in  sched- 
ules of  trades  provided  by  a  board  of  labor  employment  which  is  established 
among  the  officers  at  the  different  navy  yards.     No  applicant  can  remain  on 


272  THE  OFFICIAL  RELATION. 

6.  Civil-service  examinatiojis.  —  The  examinations 
of  candidates  for  the  positions  under  the  act  are  com- 
petitive except,  first,  where  competent  persons  cannot 
be  found  who  are  wilHng  to  compete ;  second,  to  test 
fitness  for  transfer  or  for  promotion  in  a  part  of  the 
service  to  which  promotion  regulations  have  not  been 
appHed  ;  third,  to  test  fitness  for  appointment  of  In- 
dians as  superintendents  of  teachers,  teachers  of 
industries,  kindergartners,  and  positions  in  the  Indian 
service  generally  ;  fourth,  to  test  the  fitness  of  any 
person  to  fill  a  position  which  requires  certain  peculiar 
qualifications  in  respect  to  knowledge  and  ability,  or 
such  scientific  or  special  attainments  wholly  or  in  part 
professional  or  technical,  not  ordinarily  required  in 
the  executive  service  of  the  United  States,  where  the 
head  of  the  department  desiring  the  appointment  of 
such  persons  shall  so  certify  to  the  President  and  he 
shall  approve  the  certification.  But  no  person  so 
nominated  or  appointed  shall  be  transferred  to  any 
other  position  in  the  classified  service  except  the  one 
that  may  be  filled  under  the  provisions  of  this  clause. 
In  all  cases  these  examinations  shall  be  of  a  practical 
and  suitable  character,  involving  such  tests  as  the 
commission  may  direct.  On  page  75  of  the  Four- 
teenth  Report  of  the    Civil  Service   Commission  the 

the  list  longer  than  a  year  unless  one  month  prior  to  the  expiration  of  the  year 
he  requests  that  his  term  of  eligibility  be  extended,  when  it  may  be  extended  to 
another  year.  Those  whose  names  are  on  the  labor  list  in  this  way  are  to  be 
certified  in  a  prescribed  order.  Where  work  requires  a  high  degree  of  skill, 
heads  of  departments  are  authorized  to  make  a  special  requisition,  and  pro- 
vision is  made  for  a  test  by  the  head  of  the  department  of  the  qualifications 
of  candidates,  so  as  to  enable  him  to  grade  the  candidates  provisionally  and 
to  ascertain  if  they  are  suitable  for  the  work.  No  person  certified  on  a  special 
requisition  shall  be  taken  except  as  a  first-class  workman,  and  then  only  when 
the  test  made  by  the  head  of  the  department  shows  him  to  be  entitled  to  be 
graded  provisionally  as  first  class. 


QUALIFICATIONS  FOR  OFFICE. 


273 


following  statement  is  made  with   reference   to   the 
different  kinds  of  examinations  : 

From  a  careful  review  of  the  conditions  prevailing  in  the  pub- 
lic service,  it  appears  that  three  general  classes  of  examinations 
are  required  to  properly  meet  the  demands  upon  the  Commission. 
The  first  general  class  embraces  those  designed  to  test  merely  the 
general  intelligence  and  adaptability  of  the  competitors.  These 
examinations  are  used  to  test  the  qualifications  for  positions 
where  a  greater  or  less  amount  of  intelligence  is  necessary  as  a 
measure  of  ability,  but  where  there  are  no  special  duties  to  be  per- 
formed which  require  a  special  character  of  qualifications,  as 
for  ordinary  clerks,  messengers,  etc.  For  such  positions  a  series 
of  examinations  has  been  arranged,  graduated  in  character  from 
a  mere  educational  test  of  the  most  simple  kind,  to  an  examina- 
tion requiring  scholastic  ability  about  equal  to  that  obtained  in 
the  ordinary  common  or  graded  schools.  They  are  known  as  the 
first  grade,  the  second  grade,  and  the  third  grade  basis  examina- 
tions. The  third  grade  requires  merely  the  ability  to  read,  write, 
add,  subtract,  multiply,  and  divide  whole  numbers  and  a  knowl- 
edge of  United  States  money.  The  second  grade  requires  in 
addition  to  these  a  knowledge  of  simple  operations  in  common 
and  decimal  fractions,  while  the  first  grade  requires  a  knowledge 
of  the  use  of  the  English  language  in  business  correspondence 
and  of  such  arithmetical  operations,  including  interest  and  dis- 
count, as  embrace  those  principles  necessary  to  solve  ordinary 
business  problems. 

The  examinations  of  the  second  general  class  contain  appro- 
priate tests  of  general  intelligence,  combined  with  those  specially 
designed  to  bring  out  the  particular  information  needed  to  satis- 
factorily perform  the  duties  of  technical  positions  in  the  service. 
These  positions  require  scholastic  ability  usually  of  a  high  order 
in  connection  with  some  special  or  unusual  training  or  experi- 
ence. In  this  class  are  the  examinations  for  bookkeeper,  stenog- 
raphers, and  typewriters,  examiners  of  patents,  weather  observers, 
the  various  kinds  of  draftsmen,  civil  engineers,  etc. 

The  third  general  class  of  examinations  are  those  where  no 
educational  qualifications  are  necessary  to  satisfy   the  require- 
ments of  the  service,  but  where  some  peculiar  experience  or  skill 
18 


4^ 


y 


274  THE  OFFICIAL  RELATION. 

is  demanded,  either  in  a  mechanical  or  other  special  line.  In 
these  examinations  occasionally  applicants  have  been  accepted 
as  competent,  although  unable  to  read  or  write,  the  Commission 
having  been  satisfied  that  they  were  fully  qualified  to  perform 
/)  the  duties  required.    The  specific  name  applied  to  this  class  of  ex- 

^X— ^^-""^       aminations  is  the  fourth  grade  or  trades  examinations.     They  are 
employed  to  test  applicants  as  skilled  mechanics,  etc. 

During  the  past  five  years  it  has  seemed  wise  to 
include  in  many  of  the  examinations  an  investigation 
-   )Ut^     into    the    business    experience    as    well    as   capacity 
/^  of  the  competitors.      It  is  the  purpose  of  the  commis- 

sion to  fill  many  of  the  technical  positions  in  the 
government  service  as  the  result  of  such  investiga- 
tions. In  certain  examinations  the  attempt  is  made 
to  secure  the  full  industrial  history  of  each  competitor 
for  the  purpose  of  affording  as  complete  information 
as  possible  to  the  commission  and  to  the  appointing 
officers.  In  illustration  of  this  sort  of  examination 
the  following  extract  from  the  notice  of  an  examination 
to  secure  a  person  qualified  to  assist  in  the  prepara- 
tion of  opinions  on  questions  arising  under  the  admin- 
istration of  the  public-land  laws  is  pertinent : 

The  department  asks  for  lawyers  not  over  fifty-five  years  of 
age  who  have  had  (i)  an  actual  practice  of  not  less  than  five 
continuous  years  in  the  highest  court  of  their  state  ;  and  (2)  an 
active  practice  of  not  less  than  five  years  (either  during  the  same 
five  years  above  required  or  otherwise)  either  before  public-land 
tribunals  or  before  the  courts  in  a  state  where  the  application  of 
public-land  laws  constitutes  a  material  part  of  the  work.  .  .  . 
Service  on  the  bench  will  be  counted  as  practice  in  these  re- 
quirements. No  application  for  this  examination  can  be 
accepted  unless  the  applicant  is  shown  to  be  possessed  of  these 
preliminary  qualifications.  The  examination  will  consist  of : 
(i)  10  questions  in  general  law  ;  (2)  30  questions  in  public-land 
laws,  including  homestead,  desert,  mining,  pre-emption,  timber- 


QUALIFICATIONS  FOR  OFFICE.  275 

culture,  town-site,  swamp-land,  school-land,  and  railroad-grant 
laws  ;  and  (3)  questions  calculated  to  call  forth  the  competitor's 
experience  in  the  application  and  administration  especially  of 
public-land  laws.  The  relative  weights  of  the  subjects  will  be 
(i)  general  law,  20  per  cent.;  (2)  public-land  law,  60  per  cent., 
and  (3)  experience,  20  per  cent. 

It  is  said  in  the  report  of  the  Chief  Examiner  for 
the  year  ending  June  30,  1902,^  that  during  the  year 
five  hundred  and  forty-seven  different  kinds  of  ex- 
aminations had  been  held. 

Before  presenting  himself  for  examination,  every 
person  must  make  an  application  under  oath  upon  a 
form  prescribed  by  the  commission  and  accompanied 
by  certain  certificates.  Neither  the  application  nor 
the  certificates  shall  contain  any  information  with 
regard  to  the  applicant's  religious  or  political  affilia- 
tion. With  the  exception  of  persons  who  have  been 
honorably  discharged  from  the  military  or  naval  ser- 
vices of  the  United  States,  no  applicant  shall  be  ex- 
amined who  is  not  within  the  age  limitations  which 
are  fixed  for  entrance  for  the  position  to  which  he 
seeks  to  be  appointed,  and  no  application  shall  be 
accepted  for  examination  for  a  position  which  belongs 
to  one  of  the  recognized  mechanical  trades,  unless  it 
shall  be  shown  that  the  applicant  has  served  as 
apprentice  or  as  journeyman  at  such  trade  for  such 
period  as  the  commission  may  prescribe.  Further, 
the  regulations  with  regard  to  the  specific  kinds  of 
examinations  require  certain  special  qualifications 
from  the  applicants.  Finally,  the  commission  may, 
in  its  discretion,  refuse  to  examine  an  applicant  or  to 
certify  an  eligible  who  is  physically  so  disabled  as  to 

'  Nineteenth  Report  of  the  Civil  Service  Commission,  p.  37, 


276  THE  OFFICIAL  RELATION. 

be  rendered  unfit  for  the  performance  of  the  duties 
of  the  position  to  which  he  seeks  appointment,  or 
who  has  been  guilty  of  a  crime  or  infamous  or 
notorious  and  disgraceful  conduct,  or  who  has  been 
dismissed  from  the  service  for  delinquency  or  mis- 
conduct within  one  year  preceding  the  date  of  his 
application,  or  who  has  intentionally  made  a  false 
statement  in  any  material  fact,  or  practised  or 
attempted  to  practise  any  deception  or  fraud  in  se- 
curing his  registration  or  appointment.  The  result 
of  the  stringent  qualifications  required  for  the  appli- 
cations is  that  many  applicants  for  positions  in  the 
service  who  are  not  competent  are  excluded  by  the 
application  alone,  regardless  of  the  result  of  the  ex- 
amination which  is  to  follow  the  acceptance  of  the 
application. 

Examinations  are  marked  on  the  scale  of  loo,  the 
subjects  upon  which  they  are  held  being  given  differ- 
ent weight.  Every  competitor  who  obtains  an  aver- 
age percentage  of  seventy  or  over  is  eligible  to 
appointment  to  the  position  for  which  he  was  exam- 
ined. The  names  of  eligibles  are  entered  in  the 
order  of  their  average  percentages  on  the  proper 
{)  register  of  eligibles,  with  the  exception  that  persons 

who  have  been  honorably  discharged  from  the  mili- 
tary and  naval  services  of  the  United  States  and  who 
have  obtained  an  average  percentage  of  sixty-five  or 
over  are  placed  in  the  order  of  their  average  per- 
centages at  the  head  of  the  proper  register  of  eli- 
gibles. In  certain  cases  where  extremely  technical 
and  special  qualifications  are  required,  no  eligible  list 
is  kept ;  but  examinations  are  held  as  the  vacancies 
occur.      Further,  in  the  case  of  vacancies  in  positions 


Q  UALIFICA  TIONS  FOR  OFFICE.  2  7  7 

for  which  competitive  tests  are  not  practicable,  the 
registration  of  appHcants  shall  be  in  the  order  in 
which  they  fulfil  the  requirements  prescribed  therefor 
by  the  regulations  of  the  commission,  except  that  here 
also  persons  honorably  discharged  from  the  military 
and  naval  services  of  the  United  States,  and  also  those 
who  have  been  separated  from  these  competitive  po- 
sitions through  no  delinquency  or  misconduct,  are 
placed  at  the  head  of  the  proper  register  in  the  order 
of  their  fulfilment  of  such  requirements.  The  term 
of  eligibility  is  one  year  from  the  date  on  which  the 
name  of  the  eligible  is  entered  on  the  register,  and 
no  one  shall  remain  there  after  he  has  received  three 
certifications  to  an  appointing  officer  and  has  not 
been  appointed. 

Whenever  a  vacancy  occurs  not  in  an  excepted 
position,  the  filling  of  such  vacancy,  unless  filled 
through  non-competitive  examination,  or  by  reinstate- 
ment, transfer,  promotion,  or  reduction,  takes  place  as 
follows :  The  appointing  or  nominating  officer  re- 
quests certification  to  hin'  A  the  names  of  eligibles 
for  the  position  vacant,  and  the  commission  cer- 
tifies to  such  officer  from  the  proper  register  the 
three  names  at  the  head  thereof  which  have  not  been 
three  times  certified  to  the  department  or  office  in 
which  the  vacancy  exists.  But  if  the  appointing  or 
nominating  officer,  after  submitting  his  evidence  to 
the  commission  and  receiving  its  approval,  objects  to 
an  eliofible  named  in  the  certificate  because  of  some 
physical  defect,  mental  unsoundness,  or  moral  dis- 
qualification, the  commission  certifies  the  eligible  on 
the  register  who  is  in  average  percentage  next  below 
those  already  certified,  in  place  of  the  one  to  whom 


278  THE  OFFICIAL  RELATION. 

objection  is  made  and  sustained.  The  certification  is 
made  regardless  of  sex  where  the  law  does  not  con- 
fine the  office  to  a  particular  sex,  or  where  in  the 
request  for  certification  the  sex  of  the  person  to  be 
appointed  is  not  specified. 

From  the  three  so  certified  the  appointing  ofificer 
selects  one.  This  person  receives  an  appointment 
on  probation  for  six  months,  at  the  end  of  which, 
if  his  conduct  and  capacity  are  satisfactory,  his  re- 
tention in  the  service  is  equivalent  to  absolute  ap- 
pointment. If,  however,  his  conduct  or  proficiency 
\  is  deemed  unsatisfactory,  he  is  notified  by  the  appoint- 
ing officer  that  he  will  not  receive  absolute  appoint- 
ment, and  such  notification  discharges  him  from  the 
service. 

The  rules  contain  careful  provisions  with  regard  to 
the  employment  of  substitutes,   temporary   appoint- 
A"         ments,   and  transfers  whose    purpose    is   to    prevent 
'sL  appointment  in  this  manner  from  being  made  so  as  to 
•     jus        violate  the  spirit  of  the  law  and  the  rules. 

AT     The    civil-service    laws   of   the   various   states  are 

"^    •'  founded  upon  the  same  principles.    It  must  be  remem- 

■^  bered,   however,  that  the  constitutions  of  the  states 

*  contain  peculiar  provisions   which  result    in  making 

the  law  somewhat  different  from  that  of  the  United 

States  government,  and  in  making  the  law  of  some 

particular   state    different  from  that  of  some  other 

state.     The  attempt  has  been  made  in  some  states  to 

extend  much  more  than  is  done  in  the  United  States 

law  the  preference  which  is  accorded  to  veterans  of 

the  military  and  naval  services  of  the  United  States. 

Thus    in    Massachusetts,   in    1895,   the  attempt  was 

made  to  exempt  veterans  entirely  from  examination, 


f 


Q  UALIFICA  TIONS  FOR  OFFICE.  2  7  9 

and  to  give  them  preference  in  appointment  to  posi- 
tions in  the  civil  service  of  the  state.  The  constitu- 
tionahty  of  the  law  was  questioned  ^  and  it  was  held 
that  the  act,  so  far  as  it  purported  absolutely  to  give 
to  veterans  particular  and  exclusive  privileges  distinct 
from  those  of  the  community  in  obtaining  public  of- 
fice could  not  be  upheld  as  within  the  constitutional 
power  of  the  legislature.  The  state  laws  and  rules 
relative  to  veterans  would  appear  to  give  to  such 
persons  rights  to  a  place  on  the  eligible  list  which 
may  be  enforced  by  mandamus  proceedings.  Finally 
in  some  cities  the  commission  is  to  certify  only  the 
one  standing  highest  on  this  list.  This  is  perfectly 
proper  if  the  constitution  does  not  give  a  power  of 
appointment  to  the  appointing  officer.^ 

7.  The  civil-service  commission. — For  the  purpose 
of  attending  to  the  examinations  provided  for  by  the 
law  and  rules,  and  of  generally  enforcing  the  provisions 
of  the  civil-service  act,  there  has  been  established 
both  in  the  national  and  the  state  services  a  commis- 
sion of  a  non-partisan  character.  In  the  national  and 
state  governments  this  commission  is  appointed  by 
the  chief  executive,  with  the  consent  of  the  senate  or 
council,  and  generally  removable  by  him  alone.  The 
non-partisan  character  of  the  commission  consists  in 
the  provision  that  not  all  of  its  members  shall  belong 
to  the  same  political  party.^  In  the  case  of  the  cities, 
with  the  exception  of  those  of  Massachusetts,  where 
the  state  commission  attends  to  the  municipal  exami- 


'  Brown  vs.  Russell,  l66  Mass.,  14  ;  55  A.  S.  R.,  357. 

'People  vs.  Kipley,  171  111.,  44. 

'This  has  been  held  to  be  a  perfectly  constitutional  qualification  for  the 
office  in  the  case  of  Roger  vs.  Buffalo,  123  N.  Y.,  173  ;  People  vs.  Kipley, 
171  111.,  44. 


28o  THE  OFFICIAL  RELATION. 

nations  as  well  as  the  state  examinations,  the  mayor 
appoints  and  removes  the  civil-service  commissions, 
which  are,  as  in  the  case  of  the  state  civil-service  com- 
missions, of  a  non-partisan  character.  In  New  York, 
however,  the  rules  of  the  municipal  commissions 
must,  to  be  valid,  be  approved  by  the  state  com- 
mission. Under  the  commission  is  a  chief  examiner 
whose  duty  is,  under  the  direction  of  the  commission, 
to  secure  uniformity  and  justice  in  the  action  of  the 
various  examining^  boards.  These  examining  boards 
are  in  the  national  service  to  be  desiornated  from 
among  persons  in  the  public  service  after  consultation 
with  the  heads  of  departments  by  the  civil-service 
commission.  They  may  hold  their  examinations  at 
the  capital  or  elsewhere  ;  any  fraud  on  their  part  or 
on  the  part  of  any  person  in  the  public  service  con- 
cerning the  examination  is  to  be  punished.  The 
composition  and  the  duties  of  these  boards  are  de- 
fined in  the  regulations  of  the  commission  and  the 
commission  will  consider  complaints  as  to  the  unfair- 
ness of  any  board,  and  will  revise  the  marking  or 
grading,  or  will  order  a  new  examination  if  it  thinks 
best. 

In  addition  to  the  powers  which  the  civil-service 
commissions  have  over  examinations,  some  of  the  civil- 
service  acts  grant  to  these  commissions  very  large 
powers  of  investigation  and  examination  into  the 
general  observance  by  appointing  officers  of  these 
civil-service  acts  and  the  rules.  These  acts  some- 
times give  the  civil-service  commissioners  the  power 
to  issue,  or  to  apply  to  some  court  for  the  issue  of 
subpoenas  which  require  both  the  attendance  and  tes- 
timony  of  witnesses,   and  the   production   of  books 


QUALIFICATIONS  FOR  OFFICE.  281 

and  papers  relative  to  certain  investigations,  and  the 
power  to  administer  oaths  to  such  witnesses.^ 

'  It  has  been  objected  to  these  laws  on  this  account  that  they  are  unconstitu- 
tional because  of  vesting  the  civil-service  commissioners  with  judicial  powers. 
This  objection  was  raised  in  the  case  of  People  vs.  Kipley,  171  III.,  44,  and 
was  overruled.  See  also  on  the  general  subject  the  case  of  the  Inter-State 
Commerce  Commission  vs.  Brimson,  154  U.  S.,  447,  in  which  it  was  held  that 
it  was  constitutional  to  vest  similar  powers  in  the  Inter-State  Commerce 
Commission, 


> 


1 


(    \ 


<f 


^  CHAPTER     IV. 

THE    RIGHTS    OF    OFFICERS. 


/. — Right  to  the  office. 

The  first  right  to  be  noticed  is  the  right  of  the 
officer  to  exercise  the  powers  and  perform  the  duties 
connected  with  his  office.  A  continuing  right  to  the 
office  can  be  spoken  of  only  in  the  case  of  an  officer 
whose  tenure  of  office  is  independent  of  any  adminis- 
trative superior,  so  far  as  the  length  of  term  is  con- 
cerned. Only  those  officers  have  a  permanent  right 
to  exercise  the  powers  and  perform  the  duties  of  the 
office  who  may  not  be  arbitrarily  discharged  by  an 
administrative  superior.' 

The  question  of  the  right  of  an  officer  to  his 
office  is  one,  however,  which  may  come  up  at  the 
beginning  of  the  official  relation.  It  will  naturally 
come  up  more  frequently  in  the  case  of  elected  than 
in  the  case  of  appointed  officers,  but  it  may  come  up 
in  the  case  of  appointed  officers  where  their  term  is 
fixed   by  law.     Thus,    for    instance,    the    appointing 

'  Thus  the  remedies  by  means  of  which  the  right  may  be  enforced,  namely, 
the  mandamtts  and  quo  'warranto,  may  not  be  made  use  of  in  the  case  of  offices 
of  no  certain  duration.  State  vs.  Champlin,  2  Bailey,  S.  C,  220.  Nor  may 
the  injunction  be  used  to  protect  the  incumbent  of  an  office  from  removal. 
Thus  the  United  States  Supreme  Court  in  the  case  of  White  vs.  Berry,  171 
U.  S.,  366,  has  held  that  the  injunction  may  not  be  made  use  of  to  prevent  the 
exercise  of  a  power  of  removal  contrary  to  the  civil-service  rules  passed  by  the 
President.     See  also  In  re  Sawyer,  124  U.  S.,  200,  212. 

282 


THE  RIGHTS  OF  OFFICERS.  283 

authority  may  make  an  appointment  to  an  office 
when  he  beUeves  that  the  term  of  the  incumbent  has 
expired,  while  the  incumbent  may  claim  that  his  term 
has  not  expired  and  that  he  has  therefore  a  right  to 
hold  the  office  until  the  expiration  of  the  term.  In 
the  case  of  an  elective  office,  the  question  as  to  the 
right  to  the  office  may  come  up  as  the  result  of  a  dis- 
pute as  to  who  has  been  elected.  The  title  to  such 
an  office  is  to  be  tried  by  the  quo  warranto  or  its 
statutory  substitute,  by  means  of  which  the  courts 
will  decide  who  is  the  rightful  incumbent  of  the  office 
in  question,  and  as  such  entitled  to  exercise  its 
powers  and  receive  its  emoluments.  Further,  one 
who  is  clearly  entitled  to  an  office  may  by  maizdamtis 
force  the  delivery  to  him  of  the  insignia  of  office,  and 
may  in  like  manner  obtain  possession  of  public  build- 
ings and  records.^  In  some  of  the  states  special  tri- 
bunals have  been  established  to  try  election  cases. 
If  this  is  the  case,  resort  must  be  had  to  such  tribunals 
and  use  may  not  be  made  of  the  quo  warranto.^  The 
appeal  to  the  courts  in  these  cases  is  generally  open 
to  any  candidate  for  the  office,  to  the  people  as  repre- 
sented by  the  attorney  general,  and  in  many  cases  to 
any  elector  of  responsibility.^ 

//. — Special  protection. 

The  second  right  of  officers  is  the  right  to  special 
protection  offered  by  the  criminal  law.     This  protec- 

'  People  vs.  Kelduff,  15  111.,  492  ;  Walter  vs.  Belding,  24  Vt.,  658  ;  Hooten 
vs.  McKinney,  5  Nev.,  194. 

'State  vs.  Marlow,  15  Ohio  State,  114  ;  see  also  People  vs.  Hall,  80  N.  Y.. 
117,  and  Mechem,  op.  cit.,  §  214. 

'  See  Commonwealth  vs.  Meeser,  44  Penna.  State,  341  ;  Commonwealth  vs. 
Swank,  79  Penna.  State,  154  ,  see  Mechem,  op.  cit.,  §  213. 


284  THE  OFFICIAL  RELATION. 

tion  is,  as  a  rule,  extended  only  to  certain  classes  of 
officers,  namely,  those  who  come  in  contact  with  the 
people  as  the  bearers  of  a  direct  command  from  a 
competent  authority.  Where,  for  the  purpose  of 
executing  such  commands,  it  is  necessary  for  such 
officers  to  use  force,  they  may  do  so,  and,  not  only 
are  they  relieved  from  responsibility  for  the  damage 
which  they  may  cause,  but  the  law  has  declared  it 
to  be  a  crime  to  resist  them,  and  where  an  armed 
resistance  is  offered  it  becomes  a  very  serious  matter 
for  the  persons  who  offer  such  resistance.  These 
officers  are  generally  to  be  found  among  those  who 
have  to  do  with  the  administration  of  justice,  the 
collection  of  revenue,  and  the  exercise  of  the  police 
power.  ^ 

The  offence  of  offerinor  resistance  to  officers  in  the 
performance  of  their  duties,  it  will  be  noticed,  is  a  dis- 
tinct offence  separate  and  apart  from  the  simple  offence 
of  violating  the  law  which  the  officer  is  attempting  to 
enforce  at  the  time  when  the  resistance  is  offered. 
The  latter  offence  is  an  offence  against  the  law  itself, 
while  resistance  to  an  officer  in  the  performance  of 
his  duty  is  more  in  the  nature  of  a  personal  matter, 
and  the  provisions  of  law  in  regard  to  it  are  intended 
to  protect  administrative  officers  in  the  discharge 
of  their  duties.  This  protection  is  accorded  to  them 
only  during  the  discharge  of  their  duties.^ 

'  See,  for  example,  United  States  Revised  Statutes,  section  5447  ;  New  York 
Penal  Code,  sections  46,  47. 

■'  As  to  when  officers  are  to  be  regarded  as  acting  in  the  discharge  of 
their  duties  and  thus  protected  by  the  criminal  law,  see  In  re  Neagle,  135  U.  S., 
56,  and  cases  cited  in  the  opinion.  In  this  case  it  is  held  that  the  President  of 
the  United  States  may  provide  special  protection  for  officers  in  the  discharge  of 
their  duties. 


THE  RIGHTS  OF  OFFICERS.  285 

///.  — Promotions. 

It  is  difficult  to  speak  of  the  officer  as  having  a  right 
to  promotion  except  in  the  sense  that  he  has,  so  far  as 
it  is  so  provided  by  law,  a  right  to  an  increment  of 
salary  at  the  expiration  of  some  specified  period. 
Nevertheless  some  of  the  civil-service  laws  make  pro- 
vision for  promotion  regardless  of  this  matter  of  the 
increment  of  salary.  Thus,  United  States  Civil-Ser- 
vice Rule  XI,  makes  provision  for  promotion,  which, 
it  says,  shall  be  adopted  as  the  method  of  filling 
certain  offices  so  long  as  it  is  practicable  and  useful. 
Provision  is  made  for  the  appointment  of  a  board  of 
promotion  in  each  department. 

The  regulations  for  promotion  which  are  made  by 
the  commission  are,  however,  made  in  consultation 
with  the  heads  of  the  various  departments,  and  when 
once  made  they  cannot  be  amended  or  revoked  with- 
out the  consent  of  the  commission.  The  regulations 
are  different  in  different  departments,  the  difference 
being  caused  by  the  difference  in  the  needs  of  the 
particular  departments.  They  are,  however,  very 
largely  based  upon  the  same  general  principles.  In 
the  first  place,  the  attempt  is  made  to  prevent  promo- 
tion being  made  use  of  to  fill  places,  entrance  to 
which  is  dependent  upon  examination,  by  promotion 
of  persons  who  have  not  been  examined.  In  the 
second  place,  certain  places,  such  as  higher  clerical 
positions,  it  is  provided,  shall  be  filled,  as  a  general 
rule,  only  by  promotion,  and  the  promotion  examina- 
tion upon  which  the  promotion  is  dependent  consists 
very  largely  of  an  examination  into  the  efficiency  of 
officers  as  shown  by  the  efficiency  record  which  the 


286  THE  OFFICIAL  RELATION. 

chief  clerk  of  each  bureau  has  to  keep  under  the 
direction  of  the  head  of  such  bureau.  Provision  is 
made  for  an  appeal  from  the  efficiency  rating  to  the 
board  of  promotion.  If  the  board  does  not  sustain 
the  chief  clerk,  the  question  is  to  be  referred  to  the 
head  of  the  department  and  a  full  report  of  the  case 
is  to  be  filed  by  the  board  of  promotion  with  the  civil- 
service  commission.^ 

Somewhat  similar  regulations  are  adopted  in  the 
civil  service  of  the  states  and  the  municipalities,  which 
have  adopted  the  merit  system  of  appointment.  It 
must  be  said,  however,  that  at  the  present  time  the 
promotion  regulations  which  have  been  adopted  are 
not  altogether  satisfactory.^ 

IV. — Cotnpensation. 

I.  Not  a  contractual  right. — The  fourth  right  of 
importance  possessed  by  the  official  is  the  right 
to  compensation.  This  right  is  not,  however,  a  con- 
tractual right,  since  the  official  relation  is  not  a  con- 
tractual relation.  If  the  right  to  compensation  exists 
at  all,  it  exists  as  the  result,  not  of  any  contract  or  by 
virtue  of  any  service  rendered  to  the  government,  but 
because  the  law  has  attached  a  compensation  to  the 
office.^  Therefore  one  who  accepts  an  office  to  which 
no  compensation  is  attached  by  law  is  presumed  to 
assume  the  office  as  an  honorary  office,  and  cannot 
recover  anything  for  his  services.*  But  where  one 
undertakes  work  for  a  public   corporation  at  its  re- 

'  A  list  of  the  various  regulations  in  force  relative  to  promotions  will  be  found 
in  the  Fifteenth  Report  of  the  United  States  Civil  Service  Commission,  p.  107. 
^  See  Nineteenth  Report  of  the  U.  S.  Civ.  Ser.  Com.,  p.  22. 
^  Fitzsimmons  vs.  Brooklyn,  102  N.  Y.,  536. 
*  White  vs.  Levant,  78  Maine,  568. 


THE  RIGHTS  OF  OFFICERS.  287 

quest,  he  may  recover  either  on  an  express  or  an  im- 
pHed  contract.  It  has  been  held  that  such  a  recovery- 
may  be  had  by  a  pubHc  officer  provided  the  service  he 
renders  is  absolutely  foreign  to  the  office  which  he 
holds.^ 

The  official  relation  not  beinof  a  contractual  rela- 
tion,  and  the  existence  of  the  right  to  compensation 
being  dependent  upon  the  law,  we  must  go  to  the  law 
to  find  if  there  is  a  compensation  attached  to  any 
given  office.  The  compensation,  however  it  may  be 
fixed,  may  be  changed  by  the  authority  fixing  it,  pro- 
vided no  higher  law,  such  as  the  constitution  when  it  is 
fixed  by  statute,  or  a  statute  when  it  is  fixed  by  the  ad- 
ministration, prevents.^  The  compensation  may  be 
altered,  diminished,  or  altogether  terminated  during 
the  term  of  office  of  the  incumbent,  and  such  change 
will  not  be  regarded  as  impairing  the  obligation  of  a 
contract,  since  the  official  relation  is  not  a  contractual 
relation  '^\  but  the  act  changing  the  compensation  must 
be  clear  and  specific.^  It  is,  however,  a  very  common 
provision  in  the  state  constitutions  and  statutes,  that 
the  salary  or  compensation  shall  not  be  increased  or 
diminished  during  the  term  of  office  of  the  incumbent. 
Where  such  a  provision  is  made,  it  is  absolutely  man- 
datory upon  the  authorities  having  the  right  to  fix  the 
compensation,  and  any  attempt  to  change  the  compen- 
sation contrary  to  the  rule  laid  down  either  in  the 
constitution  or  the  statutes  is  void.^    Where,  however, 

'  Evans  vs.  Trenton,  24  N.  J.   L.,  764  ;  see  also  Converse  vs.  U.  S.,  21 
Howard,  U.  S.,  463. 

*  Kehn  vs.  State,  93  N.  Y.,  291. 

*  Butler  vs.  Pa.,   10  Howard,  U.  S.,  402  ;  Conner  vs.  Mayor,  5  N.  Y.,  285. 
♦United  States  vs.  Langston,  118  U.  S.,  389. 

'Evans  vs.   Trenton,  24  N.  J.  L.,  764;  Converse  vs.   U.  S.,  21  Howard, 
U.  S.,  463. 


288 


THE  OFFICIAL  RELATION. 


official  services  have  been  rendered,  a  contract  to  pay 
for  them  at  the  rate  fixed  by  law  is  implied  which 
cannot  be  impaired  even  by  the  legislature.^ 

A  further  result  of  the  fact  that  the  official  relation 
is  not  a  contractual  relation  is  that  the  incumbent 
does  not  lose  his  right  to  his  compensation  by  reason 
of  his  inability,  as,  for  example,  from  sickness,  to  dis- 
charge the  duties  of  the  office.  So  long  as  he  holds 
the  office  he  has  the  right  to  his  compensation. ~  Fin- 
ally, if  an  officer  is  illegally  prevented  by  his  superi- 
ors from  discharging  his  duties,  as  by  an  unauthorized 
removal,  he  does  not  lose  his  claim  to  his  compensa- 
tion.^ The  only  apparent  exception  to  this  rule 
results  from  the  application  of  the  rule  as  to  de  facto 
officers.  The  application  of  the  latter  rule  brings  it 
about  that  if  the  salary  has  been  paid  to  a  de  facto 
officer,  the  de  jure  officer  has  no  claim  for  the  salary 
against  the  officer  or  corporation  paying  the  de  facto 
officer,^  but  may  sue  the  de  facto  officer  who  has  re- 
ceived the  salary.^ 

Finally,  it  is  to  be  noticed  that  the  salary  or  com- 
pensation of  public  officers  is,  from  motives  of  public 
policy,  not  subject  to    garnishment   or   attachment,® 


'  Fiske   vs.   Police  Jury,    Ii6   U.   S.,    131  ;    Stewart  vs.  Police  Jury,  ibid., 

135. 

'^O'Leary  vs.  Board  of  Education,  93  N.  Y.,  i. 

^  Fitzsimmons  T^j-.  Brooklyn,  102  N,  Y.,  536;  which  holds  further  that  in 
such  a  case  the  officer  is  not  obliged  to  deduct  from  his  claim  for  salary  what 
money  he  earns  during  the  period  of  his  absence  from  duty. 

■•Dolan  vs.  Mayor,  68  N.  Y.,  274.  If  an  officer  is  prevented,  however,  by 
injunction  from  taking  possession  of  his  office,  he  has,  it  has  been  held,  the 
right  to  his  salary  for  the  time  during  which  he  has  been  excluded.  Memphis 
vs.  Woodward,  12  Heiskell,  Tenn.,  499. 

*  Nichols  vs.  McLean,  loi  N.  Y.,  526.  There  is  some  conflict  on  this  par- 
ticular point,  see  Stuhr  vs.  Curran.  15  Vroom,   iSl. 

^Buchanan  vs.  Alexander,  4  Howard,  U.  S.,  20 


/ 


THE  RIGHTS  OF  OFFICERS.  289 

and  that  unearned  salary   may  not  according  to  the 
better  rule  be  assigned.^ 

2.  How  enforced. — The  claim  for  compensation  has 
been  spoken  of  as  a  right  on  the  part  of  officers.  This 
description  of  it  is  not  in  all  cases  correct,  since  where 
the  officer's  compensation  consists  of  a  salary  which 
is  to  be  paid  by  the  government,  it  would  seem  that, 
if  there  is  no  special  law  permitting  him  to  sue  the 
government  and  if  he  cannot  put  his  claim  into  such 
a  shape  as  to  make  some  municipal  corporation  re- 
sponsible for  it,  he  has  in  many  cases  no  claim  which 
is  enforceable  in  a  court  of  law.  This  rule  is  due  to 
the  application  of  the  principle  that  the  government 
may  not  be  sued  without  its  consent.^  In  the  national 
government,  however,  as  the  result  of  special  statute, 
officers  may  sue  the  government  for  their  compensa- 
tion.^ In  the  states  as  yet,  the  general  rule  is  that 
officers  may  not  sue  the  central  government  for  their 
salaries.  It  is  to  be  remembered,  however,  that  many 
of  the  officers  who  are  discharging  duties  which  affect 
the  state  as  a  whole  are  still  paid  by  some  one  of  the 
various  local  corporations  which  are  liable  to  suit. 
Furthermore,  where  an  officer  may  not  sue  the  state 
government,  if  the  duty  is  imposed  upon  some  dis- 
bursing officer  of  paying  the  legal  compensations  of 
other  officers,  and  he  should  refuse  to  do  so,  he  may 
be  forced  to  act  by  means  of  the  writ  of  mandamus.^ 


'Bliss  vs.  Lawrence,  58  N.  Y.,  442;  but  see  State  Bank  t'j.  Hastings,  15 
Wis.,  78,  which  holds  the  contrary,  applying  to  this  public  legal  relation  the 
rules  of  purely  private  law. 

*See  infra,  p.  387. 

*  United  States  vs.  Langston,  118  U.  S.,  389. 

*See  Nichols  vs.  Comptroller,  4  Stew,  and  Port.,  Ala.,  154  ;  Turner  vs. 
Meloney,  13  Cal.,  621. 


290  THE  OFFICIAL  RELATION. 

Finally,  where  the  compensation  of  an  officer  consists 
of  fees  to  be  paid  by  third  persons  employing  such 
officer,  the  officer  has  a  right  to  the  payment  of  the 
fees  as  fixed  by  law,  and  may  retain  until  such  fees 
are  paid  any  documents  in  his  possession  upon  which 
he  has  expended  labor/ 

Somewhat  akin  to  the  right  to  recover  compensa- 
tion is  the  right  which  all  officers  possess  to  force  the 
payment  to  them  of  all  the  expenses  which  they  have 
been  obliged  to  incur  in  order  to  discharge  their 
duties.  This  is  true  whether  the  expense  has  been 
incurred  for  the  government  or  for  an  individual.^ 

3.  Civil  pensions. — In  a  number  of  instances  officers 
are  guaranteed  by  the  law  pensions  or  superannua- 
tion allowances,  which  they  are  to  receive,  after  a 
certain  number  of  years'  service,  on  the  occasion  of 
their  retirement  from  office.  There  is  apparently 
nothing  in  the  constitution  of  the  United  States 
which  causes  any  doubt  to  arise  as  to  the  consti- 
tutionality of  such  pension  legislation.  There  are, 
however,  a  number  of  provisions  in  the  state  consti- 
tutions which  have  been  so  interpreted  by  the  courts 
as  to  make  the  question  of  the  constitutionality  of 
these  civil  pensions  one  of  considerable  difficulty. 
Many  of  the  constitutions  of  the  states  contain  a  pro- 
vision which  prohibits  the  grant  of  public  money  as 
a  gratuity  to  any  individual.  Others  contain  pro- 
visions which  require  uniformity  in  taxation.  Under 
either  one  of  these  provisions  pretty  nearly  every 
method  of   raising  money  for  the  payment  of  civil 

•  People  vs.  Harlow,  29  111.,  43  ;  see  also  Baldwin  vs.  Kouns,  81  Ala.,  272. 
'  Powell  vs.  Newburgh,  19  Johnson,  N.  Y.,  284;  United  States  vs.  Flan- 
ders, 112  U.  S.,  88. 


THE  RIGHTS  OF  OFFICERS.  291 

pensions  has  been  contested,  and  has  in  some  states 
been  declared  unconstitutional. 

The  first  civil-service  pensions  which  it  was  at- 
tempted to  provide  in  this  country  were  apparently 
pensions  to  members  of  the  fire  departments  of  the 
cities.  Originally  these  pensions  were  granted  out  of 
a  pension  fund  which  was  not  dependent  upon  the 
public  treasury  for  its  resources,  but  usually  such 
pension  funds  were  found  to  be  insufficient  to  pay 
all  the  pensions  which  it  was  necessary  to  pay,  and 
recourse  was  had  to  the  good  offices  of  the  govern- 
ment. Thus  it  was  provided  by  law  that  foreign 
fire-insurance  companies  should  pay  to  the  pension 
fund  a  certain  percentage  of  their  premiums  received 
from  business  done  within  the  state.  Such  exactions 
have  usually  been  upheld  upon  the  theory  that  they 
were  not  taxes  imposed  upon  the  insurance  com- 
panies, but  merely  one  of  the  conditions  which  the 
state  imposes  on  the  right  of  the  foreign  corporation 
to  do  business  within  its  limits.^  Inasmuch  as  such  a 
payment  is  not  a  tax,  it  is  held  not  to  be  in  viola- 
tion of  the  provision  of  the  constitution  prohibiting 
the  grant  of  gratuities  to  individuals,  and  pensions 
thus  established  are  upheld  notwithstanding  the 
fact  that  they  are  given  to  persons  who  at  the  time 
that  they  receive  them  are  not  officers  of  the  city 
government.  In  a  recent  case  the  highest  court  in 
New  York  has  held,  however,  that  public  monies  may 
not  be  made  use  of  to  pay  pensions  to  persons  not  in 
the  service  at  the  time  of  the  grant  of  the  pension.^ 

'  See,  e.  g..  Firemen's  Fund  vs.  Roome,  93  N.  Y.,  313. 

'  In  the  matter  of  Mahon,  171  N.  Y.,  263.  A  somewhat  similar  result  was 
reached  in  the  case  of  the  State  vs.  Ziegenhein,  144  Mo.,  283,  which  held  that 
pensions  from  public  monies  were  improper  except  as  an  inducement  to  future 


292 


THE  OFFICIAL  RELATION. 


These  cases  would  seem  to  indicate  that  while  pen- 
sions payable  out  of  public  funds  may  be  offered  as 
an  inducement  to  persons  to  enter  the  service,  it  is 
very  doubtful  whether  a  pension  can  be  added  to  the 
compensation  which  persons  once  in  the  service  are 
receiving  for  the  work  they  are  doing.  It  is  cer- 
tainly true  that  once  officers  have  severed  their  con- 
nection with  the  service  the  pension  may  not  be 
granted  to  them  if  such  pension  is  to  be  paid  out  of 
public  monies. 

Another  source  of  pension  funds  is  to  be  found  in 
deductions  made  from  the  salaries  of  officers.  There 
is  considerable  doubt  whether  it  is  proper  to  impose 
such  a  deduction  upon  an  officer  against  his  will  after 
he  has  once  entered  the  service.^ 

Whatever  may  be  the  rule  as  to  the  constitution- 
ality of  pensions  which  are  paid  out  of  public  monies 
or  out  of  deductions  of  salary,  it  is  unquestionably 
the  rule  that  the  claim  to  a  pension,  like  the  claim  to 
an  official  compensation,  is  not  of  a  contractual  char- 
acter. Therefore,  a  pension  may  be  changed  at  any 
time,  even  after  the  right  to  it  has  vested,  where 
authority  to  make  the  change  has  been  granted  by 
the  legislature.^ 

services  ;  but  see  on  this  point  Commonwealth  vs.  Walton,  182  Penna.  State, 
373,  which  would  seem  to  take  the  opposite  view. 

'  Thus  it  has  been  held  that  such  deductions  may  not  be  imposed  as  the 
result  of  a  rule  or  regulation  of  an  administrative  authority  which  has  not 
been  authorized  by  the  legislature  to  adopt  such  a  regulation;  State  vs.  Rogers 
(Minn.),  58  Lawyers  Reports  Annotated,  663.  In  Hubbard  vs.  State  (Ohio), 
ibid.,  654,  it  was  held  that  a  deduction  from  an  officer's  salary,  provided  by 
statute  even,  is  improper  under  a  constitution  providing  for  uniformity  of 
taxation,  since  such  deduction  is  really  the  imposition  of  a  tax  upon  a  class  in 
the  community. 

'  See  United  States  vs.  Kellar,  107  U.  S.,  64  ;  and  Pennie  vs.  Reis,  132  U. 
S.,  464,  affirming  80  Cal.,  266.     See  also  People  ex  rel  Deverj'  vs.  Coler,  71 


THE  RIGHTS  OF  OFFICERS.  293 

Within  the  last  few  years  there  has  been  consider- 
able agitation  for  the  establishment  of  civil  pensions 
in  the  civil  service  of  the  United  States,  and  one  or 
two  investigations  of  the  subject  have  been  made. 
At  present  the  plan  which  seems  to  receive  the  great- 
est favor  is  to  impose  upon  all  candidates  for  office 
the  obligation  of  securing  annuity  insurance.^ 

The  whole  matter  of  civil  pensions  in  this  country 
is  in  a  very  unsatisfactory  state.  No  systematic  at- 
tempt has  apparently  been  made,  outside  of  the  attempt 
which  is  now  being  made  at  Washington,  to  investi- 
gate the  matter  of  civil  pensions,  and  the  result  has 
been  that  in  the  same  city,  as,  for  example,  in  the  city 
of  New  York,  various  pension  plans  have  been 
adopted  for  the  different  branches  in  the  service. 
Apparently,  also,  no  attempt  has  been  made  to  pre- 
vent one  who  has  served  the  period  necessary  to  ac- 
quire a  pension,  from  holding  a  salaried  office  in  the 
government  of  the  same  city  from  which  he  receives 
a  pension.^  In  Europe,  however,  where  civil-service 
pensions  have  been  established  for  a  long  time,  there 
is  practical  uniformity  as  to  the  general  requirements 
of  pension  legislation.  Most  of  the  pension  laws  that 
have  been  adopted  have  been  based  upon  the  French 
law  of  June  8,  1853.  By  this  law  the  right  to  the 
pension  is  acquired  by  the  attainment  of  sixty  years 

App.  Div.  (N.  Y.),  584,  affirmed  in  same  vs.  same,  173  N.  Y.,  103.  In 
the  former  case  it  is  stated  that  a  claim  to  a  pension  is  not  a  contract  even 
where  the  funds  from  which  the  pension  is  paid  are  derived  from  deductions 
from  the  officer's  salary.  In  the  latter  case  it  is  held  that,  whatever  may  be 
the  character  of  a  claim  to  a  pension,  the  claim  to  an  office  to  which  a  pension 
is  attached  is  not  in  the  nature  of  a  contract. 

'  A  discussion  of  this  subject  will  be  found  in  the  Nineteenth  Report  of  the 
Civil  Service  Commission,  p.  24, 

*  See,  for  example,  People  ex  rt-/ Mulvey  vs.  York,  41  App.  Div.,  419. 


294 


THE  OFFICIAL  RELATION. 


^ 


of  age  after  thirty  years  of  service.  The  amount  of 
the  pension  is  based  on  the  average  salary  for  the  last 
six  years  of  service,  one-sixtieth  of  such  average  salary 
being  granted  for  each  year  of  service  up  to  a  maxi- 
mum of  forty-five  sixtieths.  The  fund  from  which 
these  pensions  are  paid  is  obtained  partly  out  of  de- 
ductions made  from  the  salaries  of  officers  and  partly 
from  appropriations  made  by  the  government.  The 
deduction  that  is  made  is  five  per  cent,  of  the  salary. 

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CHAPTER    V. 

THE    DUTIES    OF    OFFICERS. 

/ — Ministerial  and  discretionary  dtities. 

The  duties  of  officers  may  be  classified  from  sev- 
eral points  of  view.  From  one  point  of  view  they  are 
either  mandatory  and  ministerial,  or  discretionary  and 
judicial.  Mandatory  duties  are  those  which  are  im- 
posed upon  officers  by  provision  of  statute,  which  is 
interpreted  as  making  the  discharge  of  such  duties 
by  such  officers  absolutely  imperative.  Thus,  the 
courts  may  be  called  upon  by  individuals  to  force  offi- 
cers to  discharge  their  duties  which  are  regarded  as 
mandatory.  Again,  the  failure  to  observe  a  manda- 
tory provision  of  statute  imposing  a  duty  has  the 
effect  of  making  the  action  taken  in  non-observance 
of  such  a  provision  absolutely  void.^ 

From  another  point  of  view,  duties  are  spoken  of 
rather  as  ministerial  than  as  mandatory.  In  case 
duties  are  regarded  as  ministerial,  any  individual  who 
has  suffered  damage  as  a  result  of  the  failure  of  the 

'  See  French  vs.  Edwards,  13  Wall  (U.  S.),  506.  In  this  case  the  statute 
authorized  the  sheriff  to  sell  property  in  order  to  compel  the  payment  of  taxes, 
but  provided  that  he  should  sell  only  the  smallest  quantity  which  any  purchaser 
would  take,  and  pay  the  judgment  and  costs.  It  was  held  that  the  action  of 
the  sheriff  in  selling  the  entire  parcel  in  order  to  enforce  the  payment  of  taxes 
was  a  violation  of  this  mandatory  provision,  and  that  the  deed  given  by  the 
sheriff  to  the  purchaser  at  the  tax  sale  was  on  that  account  void. 

295 


!^  296  THE  OFFICIAL  RELAJTION. 


-^  officer  to  perform  such  duties,  or  of  his  negligence  in 

r       the  performance  of   such  duties,   may,  in   an  action 
brought  in  the  proper  way,  recover  from  such  officer 
the  damages  suffered,^ 
I  While,  as  a  general  thing,  the  character  of  an  offi- 

cer's duties  is  to  be  determined  by  the  wording  of  the 
statute  which  confers  the  duty  upon  him,  the  word 
"  may "  is  often  construed  as  meaning  "  must "  or 
"  shall. "^  Furthermore,  it  is  usually  held  that  even 
where  the  law  imposing  a  duty  upon  an  officer  is  not 
""""^  mandatory  in  form,  it  will  be  regarded  by  the  courts 
as  mandatory  where  it  has  been  adopted  with  the 
idea  of  affording  protection  to  the  individual.^ 

As  opposed  to  the  ministerial  or  mandatory  duties 
are   the   discretionary   or  judicial    duties.       Statutes 
imposing  such   duties   are  sometimes  referred  to  as 
directory.     The  general  rule  with  regard  to  discretion- 
ary duties  and  directory  statutes  is,  that  the  officer 
who  executes  them  is  not  liable  for  the  way  in  which 
/^        he  executes  them,  nor  may  he  be  forced  by  the  courts 
r^    t      to  execute  them  in  any  particular  manner.     From  this 
^^,>^       latter  point  of  view,  all  the  control  of  a  direct  charac- 
-  f       ter  that  the  courts  can  exercise  over  the  dischargfe  of 
discretionary  duties  is  to  be  found  in  their  right  to 
,_.-     ,  -'"  insist  that  the  officer  shall  exercise  his  discretion.'' 

j^  '  These  matters  will  be  treated  more  in  detail  when  we  come  to  consider  the 

control  which  the  courts  have  over  the  actions  of  administrative  officers. 

'  The  rule  as  to  the  construction  of  these  words  has  been  well  stated  in  the 

h      case  of  Mayor  vs.  Furze,  3  Hill  (N.  Y.),  612,  where  the  court  says  :   "Where 

py^  a  public  officer  has  been  clothed  by  statute  with  power  to  do  an  act  which  con- 

/  cerns  the  public  interest  or  the  rights  of  third  persons,  the  execution  of  the 

power  may  be  insisted  on  as  a  duty,  though  the  phraseology  of  the  statute  be 

permissive  merely  and  not  peremptory."       See  also   Supervisors  vs.   United 

States,  4  Wall.  (U.  S.),  435. 

3  French  vs.  Edwards,  13  Wall.  (U.  S.),  506. 
/^People  vs.  Com.  Council,  29  Mich.,  108.     The  one  exception  to  this  rule 


*/^ 


J^.V 


THE  DUTIES  OF  OFFICERS.  297 

From  another  point  of  view  we  may  classify  the 
duties  of  officers  as  those  to  which  is  attached  a 
criminal  sanction  and  those  to  which  no  such  sanction 
is  attached,  and  which  are  more  of  a  moral  character. 
In  the  first  place,  the  law  states  positively  certain 
things  which  all  officers  must  or  must  not  do,  and 
provides  penalties  of  a  criminal  character  for  dis- 
obedience of  its  provisions.  In  the  second  place,  the 
very  existence  of  the  official  relation  makes  it  neces- 
sary that  the  officer  shall  or  shall  not  do  certain 
things  or  shall  behave  towards  the  public  in  a  certain 
way.  The  duties  of  the  first  class  are  generally 
negative  in  character,  and  the  rules  of  law  in  which 
they  are  to  be  found  form  a  sort  of  special  criminal 
law  for  officers.  The  duties  of  the  second  class  are 
more  positive  in  character,  and  form  a  sort  of  official 
code  of  ethics,  which  can  be  maintained,  where  an 
official  esprit  du  corps  has  not  been  developed,  only 
through  the  existence  and  exercise  of  a  strong  disci- 
plinary power.  Where  great  reliance  has  been  placed 
upon  esprit  du  corps,  or  where  the  disciplinary  power 
is  large,  it  will  not  be  necessary  to  form  an  extensive 
official  criminal  code.  Where,  however,  this  official 
esprit  du  corps  is  not  to  be  found,  or  where  the  disci- 
plinary power  is  slight,  we  find  such  an  extensive 
official  criminal  code. 

is  to  be  found  in  the  case  of  a  serious  abuse  of  discretion  which  is  practically 
equivalent  to  fraud,  bad  faith,  or  corruption.  In  such  instances  there  are  a 
number  of  cases  which  hold  that  the  officer  who  has  been  guilty  of  such  abuse 
of  discretion  both  is  liable  to  any  individual  who  is  injured  by  his  action.  Pike 
vs.  Megoun,  44  Mo.,  491,  and  may  be  forced  by  the  courts  to  exercise  his 
powers  in  the  proper  manner.  State  vs.  Board,  134  Mo.,  296.  This  excep- 
tion to  the  general  rule  as  to  discretionary  duties  is  usually  made  with  regard 
to  actions  of  officers  impairing  the  right  of  suffrage.  Mechem,  op.  cit., 
§640. 


m 


f 


\ 


298  '  A.^TffE  OFFICIAL  INFLATION. 

II. — Duties  with  a  penal  sanction. 

I.  Common-law  crimes  of  officers. — In  the  first 
place,  it  may  be  laid  down  that  officers,  even  more 
than  ordinary  persons,  are  bound  to  obey  the  law. 
The  criminal  law  regards  as  a  crime  almost  every  act 
of  an  officer  which,  if  committed  by  an  individual, 
would  be  a  crime.^  Further,  the  law  of  the  United 
States  declares  "  any  act  or  omission,  in  disobedience 
of  official  duty,  by  one  who  has  accepted  office,  when 
of  public  concern,"  to  be  a  crime.^  The  endeavor  is, 
however,  made  to  distinguish  between  discretionary 
and  ministerial  officers.  The  general  rule  is  "  par- 
.ticularly  applicable,"  says  Mr.  Bishop,  "where  the 
thing  required  to  be  done  is  of  a  ministerial  or  other 
like  nature  and  there  is  reposed  in  the  officer  no  dis- 
cretion." In  the  case  of  officers  acting  with  discre- 
tion, the  act,  to  be  punished  criminally,  must  be 
wilful  and  corrupt.^  But  it  is  to  be  noticed  that  the 
law  excepts  the  highest  officers  of  state  from  this 
criminal  common-law  liability  for  misfeasance  or  non- 
feasance in  office.^  In  these  cases  the  control  of  the 
legislature^  is  regarded  as  sufficient.  In  some  of  the 
states  this  common-law  liability  of  officers  is  increased 
by  statute  so  as  to  make  the  mere  wilful  violation 
of  official  duty  without  corrupt  motives  punishable 
criminally.^ 

'  See  Bishop,  Critninal  Law,  ii.,  §982. 

*  Ibid.,  i.,  §  459.     See  also  Commonwealth  vs.  Coyle,  160  Pa.  St..  36. 

^  People   vs.   Coon,    15   Wend.  (N.  Y.),  277;  People  vs.  Norton,   7  Barb. 
(N.  v.),  477. 

*  Bishop,  op.  cit.,  i.,  §  462. 

'  For  which  see  infra,  p.  422. 

*  See  in  New  York,   People  vs. 
visions  of  the  Revised  Statutes. 


Brooks,  I  Denio,  457,  construing  the  pro- 


^ 


A^ 


q/^^ 


THE  DUTIES  OF  OFFICERS. 


2.     Statutory  official  crimes. — Further,  certain  spe-     h.^^.^^^ 
cific  acts   of  certain   specific    officers,   or   of  officers 
generally,  are,  by  statute,  expressly  made  punishable 
criminally.-'    Thus,  the  civil-service  law  of  the  United  ' 

States  provides  that  it  shall  be  a  crime  for  any  officer 
to  solicit  or  receive  assessments  for  the  payment  of 
party  expenses  from  any  one  in  the  service.^    It  would,  /w 

of  course,  be  impossible  to  enumerate  these  criminal  J 

provisions  imposing  punishment  upon  officers  for  the  ^'^•^*^ 
doing  of  illegal  acts.  All  that  need  be  said  about  \^,At->'\A 
the  system  in  the  United  States  is,  that  this  method 
of  enforcing  the  performance  by  officers  of  their 
duties  has  been  carried  further  than  in  almost  any 
other  country,  simply  for  the  reason  that  the  general 
disciplinary  powers  of  the  higher  administrative  offi- 
cers are  rather  weaker  in  the  United  States  than 
elsewhere.^ 

///. — Duties  of  a  moral  character. 

The  second  class  of  duties  to  which  allusion  has 
been  made  are  more  moral  than  legal  in  character, 
are  largely  based  on  executive  usage,  and  owe  their 
force  almost  entirely  to  the  existence  in  the  executive 
of  a  disciplinary  power.^  Although  they  may,  in 
some  instances,  be  sanctioned  by  criminal  penalties 
as  is  the  class  of  duties  which  has  been  considered, 
still,  they  will  never  be  well  performed  unless,  as  a 

'See  United  States  vs.  Germaine,  gg  U.  S.,  508. 

*  U.  S.  L.  18S3.  c.  27,  §§  11-15. 
^  M.  La  Ferriere  in  his  work  on  La  yuridiction  Administrative  has  called 

attention  to  this  peculiarity  of  the  American  law.     See  vol.  i.,  p.  loi. 

*  For  instance,  take  the  duty  not  to  exercise  the  power  of  removal  for  polit- 
ical reasons.  This  duty,  which  is  based  on  civil-service  rules,  the  courts  have 
held  they  will  not  enforce,  but  will  leave  it  to  the  executive  authority  to  en- 
force.    White  z/.f.  Berry,  171  U.  S.,  366. 


300 


THE  OFFICIAL  RELATION. 


result  of  the  long-continued  exercise  of  a  disciplinary 
power,  there  has  grown  up  in  the  civil  service  an 
esprit  du  corps  similar  to  that  which  is  found  in  the 
military  service,  and  which  forbids  an  officer  to  be 
guilty  of  conduct  which  is  regarded  as  unbecoming 
an  officer.  These  duties  of  a  moral  character,  so  far 
as  they  may  be  classified  at  all,  may  be  classified 
under  the  following  heads  ; 

1.  Obedze7ice  to  orders.  —  The  general  duty  of 
obedience  to  the  orders  of  superior  ofificers  is  to  be 
found  in  all  hierarchically  organized  administrative 
systems,  and  can,  in  the  nature  of  things,  exist  only 
in  such  systems.  In  the  United  States,  however,  no 
officer,  except  a  ministerial  officer  in  certain  cases,^ 
is  relieved  from  responsibility  over  against  third  per- 
sons for  violating  the  law  or  the  constitution  because 
he  has  obeyed  the  orders  of  his  superior.  In  case  he 
disobeys  orders,  he  may  be  subjected  to  the  exercise 
of  the  disciplinary  power  of  his  superior  where  no 
limit  has  been  placed  upon  such  power,  but  even  in 
the  national  system  of  administration,  which  is  almost 
the  only  instance  of  a  completely  hierarchical  admin- 
istrative system  in  this  country,  such  liability  to  pun- 
ishment for  disobedience  of  orders  does  not  relieve 
ofificers  from  civil  liability  for  the  execution  of  such 
orders  in  case  they  are  illegal.^ 

2.  Prompt  performance  of  the  duties  connected  with 
the  office. — This  duty  consists  in  the  uninterrupted 
performance  of  the  duties  of  the  office,  except  when 
leave  of  absence  has  been  granted  by  a  superior,  as 
in  the  case  of  le^al  vacations  and  sickness.  In  some 
cases    the    performance   of    this    duty    involves    also 

'  See  infra,  p.  401.  ^  Infra,  p.  401. 


THE  DUTIES  OF  OFFICERS.  301 

residence  at  the  place  where  the  office  is  situated, 
but  this  would  not  seem  to  be  the  universal  rule.  In 
some  cases  also  it  means  the  devotion  of  the  entire 
time  of  the  officer  to  the  duties  of  the  office.  This 
does  not  seem,  however,  to  be  the  common  rule.  Of 
course  there  are  a  number  of  offices  whose  duties 
will,  in  the  nature  of  things,  be  so  absorbing  that  the 
incumbents  of  such  offices  will  have  no  time  to  devote  (2'.t._— 
to  any  other  occupation,  but  when  this  is  the  case  it  Ji^^i 
is  the  practical  outcome  of  the  position  rather  than 
the  result  of  a  legal  rule.  Seldom  is  it  the  law  that 
an  officer  has  not  the  right  to  engage  in  other  occu- 
pations if  he  can,  in  the  nature  of  things,  do  so. 
Many  of  the  higher  officers  in  the  United  States  who 
receive  large  salaries  and  have  very  responsible  duties 
to  perform  are,  at  the  same  time  that  they  are  hold-  ^^ 

ing  office,  engaged  in  some  other  occupation,  such, 
for  example,  as  the  practice  of  the  legal  profession. 
In  such  case  they  simply  superintend  the  performance 
of  the  work  of  their  offices,  leaving  most  of  the  routine 
work  to  be  attended  to  by  deputies.  Our  political  ■.-  '\,^ 
system  makes  it  necessary  to  permit  the  higher  offi-  A^__^_/\- 
cers,  at  any  rate,  to  engage  in  other  occupations,  be- 
cause, on  account  of  the  legal  precariousness  of  the 
official  tenure  and  of  the  actually  frequent  changes 
made  in  the  offices,  it  is  almost  impossible  to  demand 
of  any  man  that  he  shall  give  up  his  entire  time  to 
his  official  work.  y%>\y 

3.  Good  co7idiict. — The  duty  of  good  conduct — that 
is,  courteous  behavior  to  the  public  and  orderly  be- 
havior generally,  is  a  duty  almost  altogether  of  a 
moral  character,  and  is  hardly  susceptible  of  legal 
definition.      Further,  it  is  dependent  for  its  enforce- 


302  THE  OFFICIAL  RELATION. 

ment  almost  entirely  upon  the  existence  and  exercise 
of  the  disciplinary  power.  In  some  cases,  however, 
it  is  explicitly  recognized  in  the  law.  Thus,  the  civil- 
service  law  of  the  United  States  provides  that  no 
person  shall  be  retained  in  the  service  who  habitually 
indulges  to  excess  in  intoxicating  liquors.^ 

This  duty  of  orderly  conduct  has  of  late  years 
come,  in  the  United  States,  to  mean  that  the  officer 
must  not  be  guilty  of  offensive  partisanship  against 
the  ruling  party  in  the  executive  office  or  take  active 
part  in  political  contests.^  A  good  example  of  what 
the  duty  of  courteous  behavior  to  the  public  means 
and  how  it  may  be  enforced  may  be  found  in  an  in- 
cident which  occurred  at  Washingfton  a  number  of 
years  ago.  An  individual  who  had  business  with  one 
of  the  departments  was  treated  with  incivility  by  one 
of  the  clerks.  Complaint  was  made  to  the  superior 
officer  and  the  clerk  was  dismissed  from  the  service 
by  the  head  of  the  department  with  the  remark  that 
"  every  man  who  had  business  with  the  treasury  was 
entitled  to  civil  treatment,  and  that  no  employee  who 
was  unable  to  remember  that  he  was  a  servant  of  the 
public  and  bound  to  be  courteous  to  those  whom  he 
served,  need  expect  to  be  retained."^ 

IV. — Responsibility  of  officers  for  violatioti  of  duty. 

The  violation  of  the  duties  which  have  been  so 
briefly  outlined  may  result  in  a  three-fold  responsi- 
bility.    In  the  first  place,  if  an  individual  is  damaged 

'  U.  S.  L.  1883,  c.  27,  §  8.     See  also  the  various  provisions  of  city  charters 
relative  to  the  members  of  the  police,  fire,  and  similar  departments. 

'  See  Powers,  "  The  Reform  of  the  F'ederai  Service,"  P.  S.  Q.,  iii.,  247,  252, 
'  See  New  York  Times,  Nov.  24,  18S5. 


I 


L.  yc^    'V „  _..__  i^  ^^     ^  ^^ 


'{THE  DUTIES  OF  OFFICERS.  -     ^^  ^ 

by  the  violation  of  his  duty  by  an  official,  the  official 
may  in  some  cases  be  held  liable  to  reimburse  the 
injured  individual  to  the  extent  of  the  damage  suf- 
fered.^    In  the  second  place,  if  the  law  has  attached  Q 
a  criminal  penalty  to  the  violation  of  official  duty,  the 
officer  may  be  punished  criminally.      Finally,  if  the     -^""^^''Y*^ 
administration   is  at  all  centralized,  and  if  the  disci-    .  »»n^  ^^^ 
plinary  power  is  strong,  as  it  generally  is  in  all  cen-    .  .        ^ 
tralized   systems   of  administration,  the  violation  of ', 
official  duty  may  lead  to  an  administrative  responsi-       / 
bility.      In  some  cases,  the  disciplinary  power,  where 
it  exists,   consists  merely  of  the  power  of  removal. 
Where  this  is  unconditional  it  would  seem  that  the     \Cm^      \ 
power  to   inflict  lighter    disciplinary   penalties    than 
removal  would  practically  though  perhaps  not  legally 
be   derived  from  it,   as  the  offending  officer  would 
prefer  to  submit,  for  example,  to  the  imposition  of  a 
fine,  rather  than  lose  his  place  altogether.     A  disci- 
plinary power  may,  however,  exist  where  there  is  no 
absolute  power  of  removal,  or  where  the  power  of  re- 
moval is  conditioned  upon  the  finding  of  some  cause 
when  the  decision  of  the  disciplinary   power  as    to 
what  is  cause  is  sometimes  reviewable  by  the  courts. 
For  the  power  may  be  given  to  a  disciplinary  author- 
ity to  impose  fines,  to  decree  the  loss  of  promotion, 
where  that  is  provided  as  a  claim  in  the  nature  of 
a  right,  to  degrade  the  officer  by  placing  him  in  a 
lower  rank  than  that  which  he  occupies  at  the  time 
he  violates  his  duty,  to  suspend  him  from  the  service, 
and  even  in  extreme  cases  to  order  his  arrest.     Al- 
though such  a  disciplinary  power  does  not  as  a  rule 
exist  in  the  American  administrative  system,  still  we 

'  See,  for  a  further  development  of  this  subject,  infra,  p.  ooo. 


304 


THE  OFFICIAL  RELATION. 


do  find  instances  of  it  in  the  case  of  the  purely  prO' 
fessional  services  which  have  been  established  in  some 
of  the  cities,  e.g.,  the  fire  and  police  forces.  Thus 
the  present  New  York  charter^  provides  that  the 
commissioner  of  police 

shall  have  power,  in  his  discretion,  on  conviction,  by  him  or  by 
any  court  or  officer  of  competent  jurisdiction,  of  a  member  of 
the  force  of  any  criminal  offence  or  neglect  of  duty,  or  violation 
of  the  rules,  or  neglect  or  disobedience  of  orders,  or  absence 
without  leave,  or  any  conduct  injurious  to  the  public  peace  oi 
welfare,  or  immoral  conduct,  or  conduct  unbecoming  an  officer, 
or  any  breach  of  discipline,  to  punish  the  offending  party  by 
reprimand,  forfeiting  and  withholding  pay  for  a  specified  time, 
suspension  without  pay  during  such  suspension 

not  exceeding  thirty  days,  or  dismissal  from  the  force. 
Each  of  these  three  kinds  of  responsibility,  i.e.,  the 
civil,  criminal,  and  administrative,  reinforces  and  sup- 
plements the  others.  Therefore,  as  might  be  ex- 
pected, the  extent  of  each  kind  of  responsibility  is 
not  the  same  in  different  states.  Where  the  disci- 
plinary power  is  small,  the  criminal  responsibility  is 
very  large,  as  is  usually  the  case  in  the  United  States. 
Where  the  civil  responsibility  is  small,  as  is  also 
usually  the  case  in  the  United  States,  again  we  find 
a  large  criminal  responsibility.  Finally,  if  the  admin- 
istrative responsibility  is  extensive  it  may  be  unneces- 
sary to  develop  the  other  kinds  of  responsibility  to 
any  great  extent.  No  hasty  judgment  should  be 
drawn  regarding  the  responsibility  of  of^cers  in  any 
one  state  from  a  consideration  of  only  one  of  these 
various  kinds  of  responsibility  as  all  reinforce  and 
supplement  each  other. 

'  N.  Y.  L.  iQQi,  c.     466,  §  302. 


V" 


'•J.-^ 


d-L. 


i —       J        J  * 


CHAPTER  VI. 

TERMINATION  OF  THE  OFFICIAL  RELATION,      jj/^  \JlX^/Pr 

The  official  relation  is  terminated  in  various  ways.  >,    . 

The  first  to  be  mentioned  is  by  death.  This  is  so  '  ^-^""^-"^ 
simple  that  it  hardly  needs  any  discussion.  All  that^^^  ^  "^(jutU^ 
need  be  said  in  regard  to  it  is  that  an  office  held  by 
several  is  not  usually  terminated  or  made  vacant  by 
the  death  of  one  of  the  incumbents.^  In  some  cases 
the  widow  or  the  family  of  the  deceased  officer  has  a 
claim  to  a  pension  and  the  estate  of  the  deceased 
officer  may  be  made  responsible  for  claims  made 
against  him  by  the  government.  The  official  rela- 
tion is  thus  not  in  all  cases  absolutely  terminated  by 
the  death  of  the  incumbent  of  an  office.  A  more 
important  way  of  terminating  the  official  relation  is 
the  expiration  of  the  term  of  office. 

/. — Expiratio7i  of  the  term. 

The  oreneral  rule  would  seem  to  be  that  the  ex- 
piration  of  the  term  of  an  office  causes  the  official 
relation  to  cease  so  far  as  the  future  is  concerned.^ 
An  officer  has,  after  the  expiration  of  his  term,  no 
duties  and    no  authority  to  act  except  to   complete 

'  People  vs.  Palmer,  52  N.  Y.,  83. 

*  Romero  vs.  United  States,  24  Court  of  Claims,  331.  In  some  cases,  how- 
ever, it  is  held  that  in  the  absence  of  a  specific  provision  of  statute  an  officer 
holds  over  after  the  expiration  of  his  term  until  his  successor  has  duly  qualified. 

Stratton  vs.  Oulton,  28  Cal.,  44. 
ao 

305 


/( 


^ 


306  THE  OFFICIAL  RELATION. 

unfinished  business  and  except  in  so  far  as  the  prin 
ciples  of  law  with  regard  to  officers  de  facto  may 
come  in  to  modify  this  rule.^  In  order  to  overcome 
the  inconveniences  of  such  a  rule,  it  is  often  pro- 
vided by  statute  that  the  officer  shall  hold  over  until 
his  successor  enters  upon  the  performance  of  his 
duties.  In  such  a  case  the  hold-over  holds  the  office, 
not  as  a  de  facto,  but  as  a  de  jure,  officer.^  Where 
such  a  provision  exists,  it  is  held  that  so  far  as  it  is 
necessary  to  the  protection  of  the  public  the  officer 
will  be  deemed  to  be  in  office  even  if  he  has  resigned 
and  his  resignation  has  been  accepted.' 

The  subject  of  the  term  of  office  has  become  very 
important  on  account  of  the  practice  of  fixing  a 
specified  term  of  office  for  almost  every  position. 
■j^  This  principle  was  introduced  into  the  United  States 
national  government  about  1820,  when  a  term  of  four 
years  was  provided  for  most  officers  in  the  govern- 
ment. It  has  had  the  effect  of  encouraging  changes 
in  the  incumbency  of  offices  through  the  exercise  of 
the  power  of  appointment  by  the  President,  which 
must  of  necessity  be  exercised  at  the  expiration  of 
the  terms  of  officers.  There  has  been  a  great  deal 
of  opposition  to  this  practice,  and  the  attempt  has 
been  made  a  number  of  times  to  repeal  the  term  of 
office  laws,  as  they  are  called,  but  up  to  the  present 
time  the  opponents  of  the  law  have  failed  in  securing 
what  they  desire.* 

'  People  vs.  Tieman,  30  Barb.  (N.  Y.),  193  ;  Newman  vs.  Beckwith,  61  N. 
Y.,  205. 

*  State  vs.  Bulkeley,  61  Conn.,  287  ;  State  vs.  Howe,  25  Ohio  State,  588. 
^Badger  vs.   United   States,  93    U.  S.,  599,   603;  Jones  vs.  Jefferson,  66 

Tex..  576. 

*  See  vol.  15  of  th2  United  States  Civil  Service  Commission,  p.  453  et  seq. 


TERMINATION  OF  OFFICIAL  RELATION.     307 

II.  — Resignation.  '\. 

The  official  relation  may  be  terminated  by  resigna- 
tion on  the  part  of  the  incumbent.  While  all  the 
cases  agree  upon  the  principle  that  a  completed  res- 
ignation terminates  the  official  relation,  there  seems 
to  be  a  difference  of  opinion  as  to  the  right  an 
officer  has  to  resign,  and,  where  that  right  is  admitted, 
as  to  the  necessity  of  the  acceptance  of  the  resigna- 
tion. Some  of  the  courts,  basing  themselves  on  the 
old  Eng-lish  rule  that  pfovernmental  offices  are  obliofa- 
tory,  and  seeing  that  the  recognition  of  an  absolute  v  f"*-^-^ 
rig-ht  in  the  officer  to  resig^n,  regardless  of  the  wishes 
of  his  superiors,  would  result  in  the  destruction  of  .  tZ 

the    obligation    to    assume  office,   have   held  that  a 
resignation  is  not  effective  until  it  has  been  accepted.^ 
Other  cases  have  added  to  the  old  Eno-lish  rule  the      ,  -  ,     . 
corollary  that  resignation  has,  at  common  law,  abso-     " 
lutely  no  effect ;    that  unless   the   statute  gives   the 
power  to  some  one  to  accept  a  resignation,  accept- 
ance of  a  resignation,  even  by  an  authority  which  is 
the  recognized  superior  of  the  officer  resigning,  does      1  -  - 
not  have  the  effect  of  terminating  the  official  rela-  - — 

tion.^     Other  cases  still,  losing  sight  of  the  fact  that 
at  common  law  acceptance  of  a  long  series  of  offices  a- 

was  obligatory,  have  laid  down  the  general  rule  that 
acceptance  of  a  resignation  is  never  necessary.^     If,^  * 

however,  the  general  rules  laid  down  in  these  cases"  ^ 

are  not  considered  but  only  the  actual  decisions  ren- 
dered, it  will  be  found  that  the  contradiction  is  not 

•  Van  Orsdell  vs.  Hazard,  3  Hill,  N.  Y.,  243.  i 

'  See  State  vs.  Ferguson,  31  N.  J.  L.,  107.  '  / 

^  See  People  vs.  Porter,  6  Cal.  26;  State  vs.  Clarke,  3  Nev.,  566;  Wright       "       *    n^i 
vs.  U.  S.,  I  McLean,  509,  512  ;  14  Opinions  Atty.-Gen.,  259. 

y- //  -  ^"^ 

— <- 1  /w 


3o8  THE  OFFICIAL  RELATION. 

really  so  great  as  it  seems.  For  almost  all  the  cases 
holding  that  acceptance  of  the  resignation  is  neces- 
sary were  decided  with  regard  to  local  offices  which 
were  obligatory  offices  in  the  local  self-government 
system  of  administration,  while  those  cases  which 
have  held  the  acceptance  to  be  unnecessary  have 
been  decided  with  regard  to  offices  of  the  general 
government  or  the  central  state  government,  which 
take  up  most,  if  not  all,  the  time  and  attention  of 
the  incumbent,  and  are,  therefore,  more  or  less  pro- 
fessional in  character.-' 

Where  resignation  is  permitted,  it  consists  in  the 
intention  to  relinquish  the  office  accompanied  by  an 
absolute  relinquishment.^  Provided  these  conditions 
are  present  it  makes  no  difference  how  the  resigna- 
tion is  made.  It  may  be  and  usually  is  in  writing, 
but  it  also  may  be  made  by  parol.^  Where  the 
acceptance  of  the  resignation  is  not  regarded  as 
necessary,  it  has  been  held  that  the  resignation  is 
complete  as  soon  as  it  is  out  of  the  power  of  the 
officer  resigning  to  recall  it.  Thus  the  resignation 
has  been  held  to  be  complete  after  it  has  been  mailed.^ 
Where,  however,  acceptance  of  the  resignation  is 
necessary,  the  resignation  is  not  complete  until  it  has 
been  received  by  the  authority  that  has  the  right  to 
accept  it  and  may  be  withdrawn  by  the  officer  resign- 
ing at  any  time  with  the  consent  of  the  officer  who 
has  the  power  to    accept   it.^     Finally,   where    it    is 

■  See  Edwards  vs.  United  States,  103  U.  S.,  471. 

»  Biddle  vs.  Willard,  10  Ind.,  62;  but  see  Blake  vs.  U.  S.,  14  Ct.  CI.,  462. 
holding  that  the  resignation  of  an  officer  while  temporarily  insane  is  invalid. 
»  Barbour  vs.  U.  S.,  17  Ct.  CI,,  149. 

*  State  vs.  Clarke,  3  Nev.,  566. 

*  Biddle  vs.  Willard,  10  Ind.,  62  ;  but  see  State  vs.  Hauss,  43  Ind.,  105. 


TERMINATION  OF  OFFICIAL  RELATION.     309 

provided  that  an  officer  shall  hold  over  until  his  suc- 
cessor enters  upon  the  duties  of  the  office,  it  has 
been  held  that  resignation  has  no  effect,  even  if  it  has 
been  accepted,  as  the  purpose  of  the  law  is  to  pre- 
vent an  official  interregnum}  As  there  is  no  formal 
method  prescribed  for  the  making  of  a  resignation,  so 
there  is  no  formal  method  prescribed  for  its  accept- 
ance. Thus  the  filing,  without  objection,  of  the 
resignation  in  the  proper  office  has  been  held  to  be 
an  acceptance.^  The  appointment  of  a  successor  is 
also  regarded  as  an  acceptance  of  a  resignation.^ 
The  resignation  may  never,  however,  be  retrospective, 
since  that  would  permit  an  officer  to  escape  official 
responsibilities.^ 


///. — Loss  of  qualifications. 


Loss  of  qualifications  generally  entails  loss  of  office. 
Thus  the  attainment  of  an  age  which  by  law  disquali- 
fies for  the  office,  will  terminate  the  official  relation, 
except  so  far  as  the  doctrine  of  de  facto  officers  comes 
in  to  modify  the  rule.  Conviction  for  a  crime  which 
results  in  the  loss  of  the  qualification  of  good  charac- 
ter, where  that  is  provided  for  by  statute,  will  also 
terminate  the  official  relation.  One  of  the  most  com- 
mon methods  of  losing  the  necessary  qualifications  is 
the  acceptance  of  an  incompatible  office.  This  is  re- 
garded as  ipso  facto  a  vacation  of  the  first  office,  even 

'  Badger  vs.  United  States,  93  U.  S.,  599  ;  see  also  Edwards  vs.  United 
States,  103  U.  S.,  475  ;  Thompson  vs.  United  States,  103  U.  S.,  480. 

'  Pace  vs.  People,  50  111.,  432  ;  see  also  Gates  vs.  Delaware  Co.,  12  Iowa, 
405. 

'Edwards  vs.  United  States,  103  U.  S.,  471. 

*  I  First  Comptroller's  Decisions,  325. 


^J-4-^^^ 


^ 


r^ 


310 


THE  OFFICIAL  RELATION. 


if  the  second  office  is  inferior  to  the  first'  Even 
though  the  title  to  the  second  office  is  defective,  the 
first  office  cannot  be  claimed  if,  in  the  meantime,  it 
has  been  filled.^  The  only  exception  to  this  rule  is 
that  where  the  incumbent  of  the  first  office  has  not 
the  right  to  resign,  or  where,  when  he  has  the  right 
to  resign,  his  resignation  is  not  complete,  e.  g.,  where 
i?4ias  not  been  accepted,  where  acceptance  is  neces- 
sary. In  such  a  case  the  attempted  acceptance  of  the 
second  office  has  no  effect.^ 

The  incompatibility  which  is  necessary  to  vacate 
an  office  may  result  from  common  law  or  from  statute. 
The  common  law  holds  that  an  "  inconsistency  in 
functions  of  the  two  offices,  and  not  a  mere  lack  of 
time  or  inability  properly  to  perform  the  duties  of  the 
two  offices,  is  an  incompatibility.""*  Sometimes  the 
statutes  merely  declare  that  two  offices  are  incom- 
patible when  the  rule,  as  stated,  would  apply.  Some- 
times they  declare  that  no  person  shall  hold,  at  the 
same  time,  two  lucrative  offices.  Where  the  two 
offices  are  found  in  the  same  government,  as  in  the 
state,  or  where  the  second  office  is  held  in  another 
government  (as  e.  g.  the  national  government)  over 
which  the  government  laying  down  the  rule  (as  e.  g. 
the  state  government)  has  no  jurisdiction,  the  rule  is 
that  the  second  office  is  to  be  deemed  an  incompati- 
ble office  and  that,  therefore,  the  first  office  is  vacated.^ 


'  Milward  vs.  Thatcher,  2  T.  R.,  81  ;  i  First  Comptroller's  Decisions,  324  ; 
Mechem,  op.  cit.,  §  420;  Oliver  vs.  Mayor,  63  N.  J.  L.,  634. 

'  The  King  vs.  Hughes,  5  B.  and  C,  886. 

'  The  King  vs.  Patteson,  4  B.  and  Ad.,  9. 

*  People  vs.  Green,  58  N.  Y.,  295  ;  Mechem,  op.  cit.,  §  423,  and  cases  cited. 

'  Dailey  vs.  State,  8  Blackford,  Ind.,  329  ;  Dickson  vs.  People,  i"  III.,  191; 
State  vs.  Buttz,  9  S.  C,  156. 


TERMINATION  OF  (fPPlCIAL  RELATION,   'sfi 


But  incompatible  offices  must  be  clearly  distin> 
guished  from  forbidden  offices.  In  the  case  of  for- 
bidden offices  the  rule  is  not  that  the  first  office  1?" 
vacated,  but  that  it  is  absolutely  impossible  for  a  per- 
son to  accept  the  second  office  for  which  he  is  made 
ineligible  by  the  fact  of  his  holding  the  first  office.^ 
When  the  law  provides  that  no  person  shall  hold  two 
lucrative  offices,  and  the  person  holding  an  office  over 
which  the  government  laying  down  the  prohibition 
has  no  control  (as,  for  example,  a  United  States  post- 
office)  accepts  an  office  over  which  such  government 
has  control  (as,  for  example,  a  state  office),  then  the 
second  office  is  regarded  as  a  forbidden  office.  The 
first  office,  therefore,  is  not  vacated  as  in  the  case  of 
incompatible  offices,  but  the  individual  is  deemed 
ineligible  to  the  second  office.^ 

Finally,  persistent  neglect  to  perform  the  duties  of 
the  office  is  regarded  as  an  abandonment  of  the  office.^ 
All  cases  of  resignation,  disqualification,  or  abandon- 
ment of  office  are  decided  finally  by  the  courts.^ 

IV. — Removal  front  office. 

Except  in  the  case  of  the  President  of  the  United 
States,^  the  power  of  removal  is  not  regarded  as  being 
vested  in  the  chief  executive  as  a  result  of  the  grant 
to  him  of  the  executive  power.^     The  power  is  often, 

'  People  vs.  Clute,  50  N.  Y.,  451  ;  Attorney-General  vs.  Marston,  66  N.  H., 

485. 

« State  vs.  De  Gress,  53  Tex.,  387  ;  Bishop  vs.  State,  149  Ind.,  223. 

^  Wardlaw  vs.  Mayor,  137  N.  Y.,  194. 

•*  Van  Orsdell  vs.  Hazard,  3  Hill,  N.  Y.,  243  ;  Mechem,  op.  cit.,  sections  435 

et  seq.,  478,  and  cases  cited. 

'  Parsons  vs.  United  States,  167  U.  S.,  324. 

^  State  vs.  Field,  3  111.,  79. 


^>''*-~s-.»V, 


312  THE  OFFICIAL  RELATION. 

however,  vested  by  statute  in  either  the  chief  execu- 
tive or  other  executive  officer  to  remove  officers  whom 
he  does  not  appoint.  Thus  the  power  may  be  given 
to  the  chief  executive  to  remove  officers  who  obtained 
their  offices  by  popular  election.  But  where  no  such 
power  has  been  expressly  granted,  the  rule  which  is 
applicable  to  the  executive  of  the  state  is  applicable 
to  all  executive  officers — that  is,  no  executive  officer 
possesses  the  power  of  removal  where  the  officer  to 
be  removed  owes  his  office  to  an  election  or  has  a 
term  of  office  fixed  by  statute.^ 

If,  however,  the  officer  is  appointed  by  another,  it 
would  seem  to  be  the  rule,  in  the  absence  of  any 
statute  fixing  the  term  or  tenure,  that  the  power  of 
removal  is  incident  to  the  power  of  appointment.^ 
,  The  power  of  removal  may  be  either  absolute  or 
conditional.  It  is  usually  absolute  when  incident  to 
the  power  of  appointment.  It  is  also  absolute  in  the 
case  of  the  President,  since  it  is  regarded  as  vested 
in  the  President  as  part  of  the  executive  power.^  In 
the  states  it  is  also  usually  absolute  for  the  subordi- 

J\  nates  in  the  central  departmental  services  and  also  for 

the  clerical  services  in  the  local  governments.      In  case 

•\^''      the  power  of  removal  is  absolute,  it  may  be  exercised 

\^  in  the  discretion  of  the  removing  authority,  and  no 

JU"  hearing  need  be  given  the  officer  removed.* 
/       Where  conditions  are  imposed,  they  consist  some- 
times in  the  necessity  of  obtaining  the  consent  of  an 


^ 


> 


'Speed  vs.  Common  Council,  97  Mich.,  198;  State  vs.  Chatburn,  63  la., 
659  ;  Speed  vs.  Common  Council,  98  Mich.,  360. 

"^  Ex  parte  Hennen,  13  Peters,  U.  S.,  230;  People  ex  rel.  Sims  vs.  Fire 
Commissioners,  73  N.  Y.,  437. 

^Parsons  vs.  United  States,  167  U.  S.,  324. 

*  Trainor  vs.  Board,  89  Mich.,  162. 


TERMINATION  OF  OFFICIAL  RELATION.     313 

executive  council.  This  is  frequently  true  of  the 
power  of  the  governor  to  remove  the  important  "  state 
officers."  ^  In  other  cases,  which  are  very  frequent  in 
the  states,  the  condition  consists  in  the  fact  that  the  re- 
moval may  be  for  cause  only.  Where  the  removal  may 
be  for  cause  only,  a  hearing  must  be  given  the  officer 
to  be  removed,^  except  perhaps  in  the  case  of  officers 
removed  by  the  President.^  In  other  cases,  while  the 
removal  is  not  conditioned  upon  the  existence  of 
cause,  the  statute  provides  that  the  individual  to  be 
removed  must  be  given  a  hearing.  The  control  which 
the  courts  possess  over  the  exercise  of  the  power  of 
removal  differs  considerably  in  these  two  cases.  In 
the  first  case — that  is,  where  removal  may  be  for  cause 
only,  it  would  appear  to  be  the  rule  that  the  courts 
have,  except  in  the  case  of  officers  removed  by  the 
President,  the  right  to  review  the  determination  of 
the  removing  officer  as  to  what  is  cause."*  Where, 
however,  the  statute  does  not  limit  removal  to  cases 
where  cause  is  present,  but  merely  provides  that  a 
hearing  shall  be  given,  the  tendency  of  the  courts  is 
to  insist  merely  that  the  hearing  shall  be  given,  and 
to  refuse  to  go  into  the  question  of  the  existence  of 
cause.^  Where  the  cause  is  not  particularly  specified, 
the  courts  then  have  the  right,  except  in  the  case  of 
removals  by  the  President,  to  review  the  determina- 
tion of  the  removing  officer  as  to  what  is  cause.     In 

*  Supra,  p.  103. 

*  Dullam  vs.  Willson,  53  Mich..  392. 
^Shurtleff  vs.  United  States,  189  U.  S.,  311. 

■*  Nichols  vs.  Mayor,  79  N.  Y. ,  582;  see  also  People  ex  rel.  Munday  t/j. 
Fire  Commissioners,  72  N.  Y.,  445  ;  Shurtleff  vs.  United  States,  189  U.  S., 
311.     But  see  Dullam  vs.  Willson,  53  Mich.,  392. 

*  People  vs.  Brady,  166  N.  Y.,  44  ;  In  the  Matter  of  Guden,  171  N.  V.,  529. 


314  THE  OFFICIAL  RELATION. 

the  exercise  of  this  power  the  courts  have  said  that 
the  cause  sufficient  to  justify  a  removal  for  cause  must 
be  some  dereHction  of  duty,  or  incapacity,  or  deHn- 
quency,  and  that  the  mere  fact  that  another  person 
might  perform  the  duties  of  the  officer  better  than 
the  incumbent  is  not  sufficient  cause.^ 

Sometimes  the  statutes  granting  the  power  of  re- 
moval or  fixing  the  term  of  office  specify  definitely 
the  causes  for  removal.  If  such  is  the  case,  the  re- 
moving officer  may  remove  only  for  the  causes  speci- 
fied in  the  law.^  The  causes  which  are  thus  specified 
are  usually  official  misconduct,  maladministration  in 
office,  breach  of  good  behavior,  wilful  neglect  of  duty, 
extortion,  and  habitual  drunkenness.  The  legisla- 
ture may,  in  the  absence  of  constitutional  provision, 
determine  what  shall  be  sufficient  to  justify  the  exer- 
cise of  the  power  of  removal,  but  where  the  consti- 
tution provides  that  certain  causes  will  justify  the 
exercise  of  the  power,  the  legislature  may  not  add 
new  causes.^  Where  the  law  provides  for  removal 
for  official  misconduct,  it  is  necessary  to  separate  the 
character  of  the  officer  from  the  character  of  the  man 
who  holds  the  office — that  is,  the  misconduct  must  be 
official  misconduct.^ 

As  a  general  thing,  the  power  of  removal  does 
not  include  the  power  to  suspend,^  though  it  may  be 
expressly  so  provided  by  statute.  The  exercise  of 
the  power  of  removal  may  be  express  or  implied. 
Where  the  power  of  removal  is  absolute,  the  appoint- 

'  People  vs.  Fire  Commissioners,  72  N.  Y.,  445. 
'  Mechem,  op.  cit.,  §  450,  with  cases  cited. 
^Commonwealth  vs.  Williams,  79  Ky.,  42. 
■' Commonwealth  vs.  Barry,  Hardin,  Ky.,  229,  231. 
*  Gregory  vs.  New  York,  113  N.  Y.,  416. 


TERMINATION  OF  OFFICIAL  RELATION.     315 

ment  of  another  person  to  an  office  with  the  inten- 
tion of  superseding  the  incumbent  is  regarded  as  a 
removal.' 

V. — Legislative  actio?i. 

It  has  already  been  pointed  out  that  an  office  is  not 
a  contract.  It  is,  therefore,  perfectly  within  the 
power  of  the  legislature,  in  the  absence  of  some  spe- 
cial constitutional  limitation,  to  terminate  the  official 
relation,  either  by  abolishing  the  office,  shortening 
the  term,  declaring  the  office  to  be  vacant,  or  trans- 
ferring the  duties  of  one  officer  to  another.'  Further- 
more, where  the  legislature  has  no  power  of  removal, 
it  has  been  held  that  it  still  may  abolish  the  office 
with  the  incidental  result  of  terminating  the  official 
relation  of  the  incumbent.^  The  same  rules  are  true 
with  regard  to  municipal  officers.  The  municipal 
authority  having  the  power  to  create  offices  has  the 
right  to  abolish  them.^  Finally,  the  legislature  often 
has,  by  constitutional  provision,  the  right  to  terminate 
the  official  relation  through  the  process  of  impeach- 
ment.^ 

'  See  Mechem,  op.  cit.,  §  459. 

^  Butler  vs.  Pennsylvania,  10  How.,  U.  S.,  402  ;  State  vs.  Douglas,  26  Wis., 
428  ;  Attorney-General  vs.  Squires,  14  Cal.,  12  ;  Bunting  vs.  Gales,  77  N.  C., 
2S3. 

^  Koch  vs.  Mayor,  152  N.  Y.,  72. 

*  Augusta  vs.  Sweeny,  44  Ga.,  463;  Ford  vs.  Commissiooers,  22  Pacific 
(Cal.),  278. 


f\r-t^.  ^      U-gr 


"■r^  A. 


«^    BOOK  V.      >  '  ^ 

METHODS    AND    FORMS   OF   ADMINIS 
^  f?Lv.v-ir-'-*Jl  TRATIVE   ACTION. 


A^,'  CHAPTER  I.  i^ 


DISTINCTION    OF    THE    METHODS    FROM    THE    DIRECTIONS 
OF    ADMINISTRATIVE    ACTION. 

The  administration  has,  up  to  this  point,  been  con- 
sidered at  rest ;  its  organization,  both  at  the  centre 
and  in  the  locaHties,  the  relations  of  the  officers  and 
authorities  with  each  other,  and  the  rules  in  regard 
to  the  official  service  have,  it  is  hoped,  been  treated 
with  sufficient  fulness,  to  give  an  adequate  idea  of 
the  administrative  machinery  and  the  character  of  the 
official  system  of  the  United  States.  It  now  becomes 
necessary  to  consider  the  methods  and  forms  of  the 
action  for  the  purpose  of  which  the  administrative 
system  is  formed. 

Care  must  be  taken  to  distinguish  the  methods  and 
forms  of  administrative  action  from  its  directions — 
that  is,  the  various  services  which  the  administration 
may  attend  to  in  the  interest  of  the  community. 
While   these   latter  vary  greatly  in  different  states, 

316 


METHODS.  317 

while  in  some  the  directions  of  administrative  action 
may  be  much  more  numerous  than  in  others,  the 
forms  and  methods  of  administrative  action  are 
everywhere  essentially  the  same.  Thus  the  adminis- 
tration may  or  may  not  attend  to  the  telegraphic  or 
railway  service  of  the  country.  Whether  it  does  or 
does  not,  it  must,  in  all  cases,  make  some  contracts  if 
the  government  is  to  be  conducted  at  all.  Again,  the 
administration  may  or  may  not  exercise  a  supervision 
over  the  press  ;  whether  it  does  or  does  not,  it  must 
in  all  cases  exercise  a  certain  amount  of  police 
power. 

The  forms  and  methods  of  administrative  action, 
being  everywhere  essentially  the  same,  can  be  classi- 
fied under  essentially  the  same  categories.  We  may 
go  a  step  further  ;  we  may  classify  also  the  directions 
of  administrative  action  in  essentially  the  same 
general  categories.  This  is  so,  notwithstanding  the 
fact  that  in  some  states  the  directions  of  administra- 
tive action  are  much  more  numerous,  and  the  extent 
of  administrative  activity  is  much  wider  than  in  others. 
In  all  states,  on  account  of  the  uniformity  of  modern 
civilization,  we  may  classify  these  directions  of  ad- 
ministrative action  under  the  same  general  heads. 

In  the  first  place,  we  find  everywhere  that  the 
administration,  acting  as  the  delegate  of  the  sover- 
eign, exercises  powers  of  compulsion  over  those 
persons  who  are  in  obedience  to  the  state.  Thus 
everywhere  the  government  must  provide  for  the 
levying  of  taxes  in  order  to  carry  on  the  various  ser- 
vices which  it  undertakes.  Thus  again,  the  govern- 
ment has  to  exercise  what  are  called  police  powers, 
over  the   persons  in   its   obedience.      It  has  thus  to 


3i8  ADMINISTRATIVE  ACTION. 

maintain  the  public  health  and  security,  it  has  to 
regulate  trades  and  occupations  where  the  regulation 
of  such  trades  and  occupations  is  necessary  for  the 
public  good,  and  in  such  cases  has  seriously  to  curtail 
the  freedom  of  individual  action.  The  sfovernment 
has  further  to  provide  means  for  the  administration 
of  justice,  both  to  determine  the  rights  of  its  citizens 
where  contest  has  arisen  with  regard  to  them,  and  to 
preserve  the  peace.  The  government  must  also  pro- 
vide means  for  supporting  its  dependent  classes  and 
for  giving  to  the  youth  of  the  community  means 
to  educate  themselves.  Finally,  in  all  popular  gov- 
ernments, provision  must  be  made  for  the  selection 
of  the  various  officers  whose  action  is  necessary,  in 
order  that  any  part  of  the  work  of  the  government 
may  be  performed. 

In  all  these  cases  the  administration  is  called  upon 
to  do  a  large  part  of  the  work  demanded  of  the  gov- 
ernment. Thus,  in  the  case  of  elections,  the  adminis- 
tration has  to  provide  for  the  necessary  means  by 
which  elections  shall  be  carried  on,  it  has  to  supervise 
the  registration  of  voters,  the  counting  of  the  votes, 
and  the  announcement  of  the  result. 

In  the  second  place,  the  government  acts,  not  so 
much  as  a  delegate  of  the  sovereign,  but,  so  to  speak, 
rather  as  the  man  of  business  of  society,  carrying  on 
commercial  and  similar  undertakings,  which  are  too 
vast  to  be  well  managed  by  individual  or  corporate 
effort,  or  of  such  a  nature  that  better  results  to  the 
community  as  a  whole  may  be  expected  to  follow 
governmental  than  private  management  and  control. 
It  is  in  this  particular  that  the  states  of  the  world 
differ  the  most,  the  one  from  the  other.      In  those 


METHODS.  319 

states  which  have  adopted,  as  it  may  be  said  the 
United  States  has  adopted,  what  is  known  as  the 
laisser-faire  poHcy,  the  action  of  the  government  will 
not  be  nearly  so  extensive  as  it  is  in  those  states 
which  have  adopted  the  system  of  government  which 
we  are  accustomed  to  denominate  paternal.  But  wher- 
ever the  government  has  determined  to  enter  upon 
any  one  of  these  directions  of  governmental  activity, 
it  is  the  administration  that  is  called  upon  to  attend 
to  the  detailed  work  of  the  government.  If  the  gov- 
ernment determines  itself  to  attend  to  the  postal 
service,  it  is  the  administration  which  must  attend 
to  the  details  of  receiving  and  forwarding  postal 
matter  from  one  part  of  the  country  to  another. 

Thirdly  and  finally,  the  government,  under  almost 
all  systems,  in  addition  to  acting  as  the  sovereign, 
demanding  sacrifices  of  individual  freedom  from  the 
citizens  of  the  state,  and  in  addition  to  entering  upon 
undertakings  of  a  commercial  character,  does  certain 
things  which  do  not  curtail  individual  freedom,  but 
which,  on  the  contrary,  further  directly  the  wel- 
fare of  the  individual,  things  which  the  individual 
cannot,  under  any  circumstances,  do  for  himself. 
Thus  we  find  the  government  collects  a  vast  amount 
of  information,  which  is  kept  on  record,  and  is  made 
use  of  by  both  the  officers  of  the  government  and  by 
students  who  are  investigating  social  problems.  The 
census  is  the  most  prominent  example  of  this  kind  of 
action.  The  government  also  makes  provision  for 
the  filingr  and  authenticatino-  of  documents  and 
records  ;  and  issues  patents  which  give  the  individual 
certain  rights  under  the  private  law.  It  issues 
charters    of    incorporation    which   permit   individuals 


320  ADMINISTRATIVE  ACTION. 

to  act  in  a  particular  manner  that  without  such 
charters  of  incorporation  would  be  improper.  In  all 
these  cases,  as  in  the  cases  already  mentioned,  just 
so  soon  as  the  grovernment,  throuofh  its  leofislative 
department,  determines  to  enter  upon  one  of  the 
directions  of  activity,  the  administration  is  at  once 
called  upon  to  take  action. 

We  may  say,  therefore,  that  the  directions  of  ad- 
ministrative action  are,  in  the  first  place,  authoritative 
or  governmental ;  in  the  second  place,  commercial, 
and,  in  the  third  place,  directly  in  furtherance  of  the 
public  welfare.  Any  detailed  account  of  these  direc- 
tions of  administrative  action  would  necessitate  the 
systematic  treatment  of  the  whole  field  of  administra- 
tive action  :  of  the  five  great  administrative  branches 
which  have  already  been  distinguished,  namely, 
foreign,  military,  judicial,  financial,  and  internal 
affairs.  Such  a  treatment  will  not  be  undertaken 
here,  as  it  is  not  within  the  scope  of  the  present 
work,  which  must,  on  account  of  lack  of  space,  be 
confined  to  the  presentation  of  the  main  principles 
lying  at  the  basis  of  the  administrative  system  of  the 
United  States.-' 

It  is,  however,  necessary  for  us  to  enter  upon  a 
somewhat  detailed  consideration  of  the  forms  and 
methods  of  administrative  action  if  we  are  to  hope  to 
obtain  an  adequate  idea  of  the  way  in  which  the 
administration  performs  the  work  which  is  entrusted 
to  it.  Such  a  consideration  is  necessary,  not  only 
from  the  point  of  view  of  administrative  activity,  but 

'  For  an  interesting  discussion  of  this  subject  from  the  point  of  view  of  the 
activity  of  municipalities,  see  Wilcox,  The  Study  of  City  Government,  chapter 
ii.  Dr.  Wilcox's  clas^ification  is  made  from  the  economic  and  social  rather  than 
the  legal  point  of  view. 


METHODS.  321 

also  from  the  point  of  view  of  the  rights  of  the 
individual.  The  remedies  of  the  individual  over 
against  the  administration  practically  determine  his 
rights,  and  these  remedies  are  governed  almost  en- 
tirely by  the  character  of  the  acts  which  the  adminis- 
tration is  permitted  to  perform. 

The  methods  and  forms  of  the  action  of  the  admin- 
istration are  largely  dependent  upon  the  character  of 
the  duties  which  the  administration  is  called  upon  to 
perform.  The  character  of  these  duties  is  in  turn 
dependent  upon  the  nature  of  the  rules  of  administra- 
tive law  which  the  administration  has  to  apply. 
These  rules  are  of  two  kinds,  they  either  contain 
a  complete  expression  of  the  will  of  the  state,  or  so 
incompletely  express  the  will  of  the  state  that  some 
further  action  is  necessary  in  order  that  this  will  may 
be  capable  of  execution. 

21 


CHAPTER  II. 

THE    EXPRESSION    OF    THE    WILL    OF    THE    STATE. 

/. — Unconditional  statutes. 

Those  rules  of  administrative  law  which  completely 
express  the  will  of  the  state  are  found  in  statutes 
which  are  put  into  the  form  of  unconditional  com- 
mands to  the  people  to  do  or  to  refrain  from  doing 
some  particular  thing,  and  which  threaten  the  violation 
of  their  provisions  with  the  imposition  of  a  penalty,  in 
the  nature  of  a  fine  or  of  imprisonment.  Such  rules 
of  law  naturally  bear  a  strong  resemblance  to  crimi- 
nal laws  ;  but  in  no  ordinary  classification  of  the  law 
would  they  be  included  within  the  criminal  law,  nor 
would  they  ordinarily  be  inserted  in  the  penal  code. 
The  penal  code  contains,  as  a  general  thing,  those 
penal  provisions  of  law  which  are  intended  to  protect 
from  invasion  the  rights  of  persons  and  of  property. 

The  laws  to  which  penalties  are  attached,  w^hich  at 
the  same  time  are  laws  laying  down  general  rules  of 
conduct  with  regard  to  administrative  matters,  are  to 
be  found  scattered  through  the  statute  books  gener- 
ally in  connection  with  that  part  of  the  administrative 
law  which  they  are  intended  to  protect.  For  ex- 
ample, take  what  is  known  as  the  customs  adminis- 
trative  law.     The  endeavor  has  been  made  to  put 

322 


EXPRESSION  OF  STATE  WILL.  323 

this  law  into  the  form  of  absolute  unconditional  com- 
mands to  the  officers  of  the  customs  and  to  individu- 
als, violation  of  which  commands  is  punishable  under 
penal  provisions  inserted  in  the  laws  themselves. 
Thus  the  customs  administrative  law  says  to  import- 
ers and  shipmasters  that  they  must  transact  their 
business  in  a  certain  way  ;  that  they  must  do  given 
things,  as,  for  example,  enter  their  ships  and  their 
invoices  of  merchandise  in  a  certain  way  and  at 
certain  times.  They  must  also  refrain  from  doing 
certain  things,  as,  for  example,  they  must  not  un- 
load their  ships  at  certain  times  of  the  day  with- 
out a  permit  from  the  customs  officers.  To  the 
violation  of  these  provisions  is  attached,  in  the  law 
itself,  a  penalty.  The  mere  fact  that  such  provisions 
of  administrative  law  have  penalties  attached  to  their 
violation  does  not  make  them  any  the  less  adminis- 
trative in  character.^  The  legislature  has  by  this 
means  endeavored  to  insure  that  the  business  of  im- 
porting merchandise  shall  be  transacted  in  a  certain 
way.  If  it  is  transacted  in  this  way  the  duties  upon 
imported  merchandise  will  be  easily  assessed  and  col- 
lected. A  similar  example  might  be  drawn  from  the 
law  relative  to  the  collection  of  the  internal  revenue 
and  from  police  laws  generally. 

Every  country  strives  to  put  its  administrative  law 
into  the  form  of  absolute,  unconditional  commands, 
since  no  rule  of  law  is  so  easy  of  enforcement  by  the 
administration  as  a  direct  command  whose  violation 
is  criminally  punishable.  There  is  little  chance  of  con- 
flict between  the  administration  and  the  individuals 
to  whom  the  law  is  to  be  applied,  since  in  applying 

'  Taylor  et.  al.  vs.  United  States,  3  How.,  U.  S.,  197,  210. 


324  ADMINISTRATIVE  ACTION. 

this  class  of  the  rules  of  administrative  law  the  action 
of  the  administration  is  confined  to  hunting  up  all 
violations  of  them  and  to  seeing  that  the  penalties 
for  such  violations  are  enforced.  The  administration 
has  little  or  no  discretion  to  exercise,  since  the  will  of 
the  state  has  been  completely  expressed  in  the  law, 
and  since,  therefore,  the  administration  has  only  to 
execute  the  will  of  the  state — that  is,  the  law,  and  is 
not  called  upon  to  aid  in  any  way  in  its  expression. 

Not  only  is  the  attempt  always  made  to  put  all  the 
administrative  law  possible  into  the  form  of  such  un- 
conditional commands,  but  it  may  also  be  said  that 
the  first  step  in  the  regulation  by  the  government  of 
any  particular  matter  consists  in  the  passage  of  a  law 
which  forbids  the  doing  of  certain  things  or  com- 
mands that  they  shall  be  done.  Take,  for  example, 
the  early  highway  law  of  England.  This  imposed 
upon  the  parish  the  duty  of  maintaining  the  highways 
and  subjected  all  the  inhabitants  of  the  parish  to  the 
liability  of  criminal  prosecution  for  failure  to  perform 
their  duty. 

As  civilization  becomes  more  complex,  such  a 
method  of  regulation  in  many  instances  becomes 
ineffective.  There  are  many  duties  which  the  gov- 
ernment is  called  upon  to  perform  in  a  complex  civil- 
ization which  cannot  be  performed  under  a  system 
of  unconditional  commands.  No  legislature  has  such 
insight  or  so  extended  a  vision  as  to  be  able  to  regu- 
late all  the  details  in  the  administrative  law,  or  to  put 
in  the  form  of  unconditional  commands  rules  which 
will  in  all  cases  completely  or  adequately  express  the 
will  of  the  state.  It  must  abandon  the  system  of  un- 
conditional commands  and  resort  to  conditional  com- 


EXPRESSION  OF  STATE  WILL.  325 

mands  which  vest  in  the  administrative  officers  large 
powers  of  a  discretionary  character.  The  legislature, 
therefore,  enacts  a  series  of  general  rules  of  adminis- 
trative law  which  in  distinction  from  those  we  have 
just  considered,  may  be  called  relative  or  conditional 
statutes. 

//. — Conditional  statutes. 

These  conditional  statutes  lay  down  the  conditions 
and  circumstances  in  which  it  will  be  lawful  for 
the  administration  to  act,  and  the  action  of  the 
administration  in  enforcing  them  does  not  consist 
merely  in  seeing  that  the  laws  as  passed  by  the  legis- 
lature are  executed,  but  rather  in  elaborating  the 
details  as  to  points  which  the  legislature  is  unable  to 
foresee,  or  which,  if  it  can  foresee,  it  is  unable  to 
regulate.  While  the  absolute  unconditional  stat- 
utes are,  as  a  general  thing,  addressed  to  the 
persons  subject  to  the  obedience  of  the  state,  these 
conditional  statutes  are  rather  addressed  to  the 
administrative  authorities  and  are  in  the  nature  of 
instructions  to  them  how  to  act  in  the  o-eneral  classes 
of  cases  for  which  provision  has  been  made.  The 
action  of  the  administration  in  the  case  of  the  uncon- 
ditional statute  is  confined  simply  to  the  execution 
of  the  state  will.  In  the  case  of  the  conditional 
statute,  the  administration  has  not  merely  to  execute 
the  state  will,  but  has  as  well  to  participate  in  its 
expression  as  to  the  details  which  have  not  been  reg- 
ulated by  the  legislature. 

As  a  natural  result,  the  forms  and  methods  of  ad- 
ministrative action  are  quite  different  in  the  case  of 
these   conditional    statutes    from   what    they   are    in 


/ 


326  ADMINISTRATIVE  ACTION. 

the  case  of  the  unconditional  statutes.  In  enforc- 
ing these  conditional  statutes,  the  administration 
acts  in  one  of  two  ways  :  In  the  first  place  it  either 
issues  ordinances  or  general  rules  which  regulate 
the  details  not  regulated  in  the  statutes,  and  not 
possible  of  regulation  by  the  legislature,  or  it  issues 
special  orders,  not  of  general  but  of  individual  appli- 
cation, which  apply  to  concrete  cases  either  the  statute 
law  alone  or  the  statute  law  supplemented  by  admin- 
istrative ordinance. 

I.  Administrative  ordinances.  —  The  ordinances 
which  are  issued  by  the  administrative  authorities  are 
issued  under  an  ordinance  power  which  is  either  inde- 
pendent or  delegated.  By  an  independent  ordinance 
power  we  mean  a  power  which  by  the  constitution  is 
recognized  as  vested  in  the  administration  reofardless 
of  the  action  of  the  legislature.  This  independent 
ordinance  power  may  give  the  right  to  issue  ordi- 
nances which  orovern  matters  that  have  not  been  at 
all  the  subject  of  legislative  regulation  or  such  ordi- 
nances as  are  merely  supplementary  to  a  statute 
already  passed  by  the  legislature.  The  independent 
ordinance  power  is  not  recognized  as  being  vested 
in  the  President,  except  perhaps  in  military  matters^ 
or  the  ofovernor  or  other  administrative  authorities 
in  our  system  of  government,  except  in  the  case  of 
municipal  corporations.  These  bodies  have  from 
time  immemorial  been  recognized  as  having,  in  the 
absence  of  statutory  provision,  the  right,  as  a  result  of 
their  incorporation,  to  issue  local  police  ordinances.^ 

Apart,   however,   from  the  case  of  the   President, 
and  the  municipal  corporations,  the  general  rule  in 

*  Supra,  p.  87.         ^  See  City  of  Crawfordsville  vs.  Braden,  130  Ind.,  149. 


EXPRESSION  OF  STATE   WILL.  327 

this  country  is  that  the  administrative  authorities 
possess  only  the  delegated  ordinance  power — that  is, 
they  may  issue  ordinances  only  where  the  power  to 
issue  such  ordinances  has  been  expressly  given  to 
them  by  the  legislature.  As  a  general  thing,  the 
legislature  does  vest  in  the  chief  executive,  the  heads 
of  executive  departments,  or  other  specified  executive 
officers,  as  well  as  in  the  governing  bodies  of  the 
various  local  corporations,  the  power  to  issue  ordi- 
nances with  regard  to  specific  subjects.  In  the  case 
of  municipal  corporations,  it  is  quite  commonly  the 
fact  that  a  general  power  of  ordinance  is  granted. 
It  has  already  been  shown  that  the  grant  of  such 
legislative  or  quasi  legislative  powers  to  administra- 
tive and  executive  authorities  and  officers  is  not 
regarded  as  a  violation  of  the  principle  of  the  separa- 
tion of  powers.^ 

The  difference  between  an  independent  power  of 
ordinance  and  the  general  ordinance  power  due  to  a 
general  grant  by  the  legislature  on  the  one  hand,  and 
a  delegated  power  of  ordinance  with  regard  to  specific 
subjects  on  the  other  hand,  is  quite  important. 
The  independent  ordinance  power  or  the  general 
ordinance  power,  standing  alone,  is  much  greater 
than  the  power  to  pass  ordinances  in  specific  cases. 
Indeed,  it  has  been  held  that  a  general  grant  appended 
to  a  special  grant  does  not  abrogate  the  limitation 
which  may  be  contained  in  the  special  provision — 
that  is,  it  will  not  enlarge  the  powers  granted  by 
special  provision  as  to  the  specific  matter,  but  simply 
gives  the  power  to  pass  ordinances  upon  other  mat- 
ters within  the  general  scope  of  the  delegation.^ 

^ Supra,  p.  84  et  Sc-q.  '  See  State  vs.  Ferguson,  33  N.  H.,  424. 


328 


ADM  IN  IS  TRA  TIVE  AC  TION. 


Inasmuch  as  the  legislature  cannot  deleo'ate  more 
power  than  it  itself  possesses,  the  authorities  to  which 
ordinance  powers  are  given  are  subject  to  the  consti- 
tutional limitations  upon  the  power  of  the  legislature.^ 

In  order  to  prevent  the  various  administrative 
authorities  from  abusing  their  power  of  ordinance,  it 
is  generally  the  case  that  their  exercise  of  it  is  subject 
to  some  sort  of  control.  The  control  which  is  exer- 
cised over  the  ordinances  of  the  administrative  author- 
ities varies.  It  is  in  the  first  place  sometimes  exercised 
by  the  legislative  authority.  That  is,  the  legislature 
provides  in  the  statute  vesting  the  administrative 
authorities  with  ordinance  power  that  the  ordinances 
issued  by  such  authority  as  a  result  of  the  exercise 
of  the  power  shall,  before  they  may  go  into  execution, 
be  submitted  to  the  legislature  and  be  approved  by  it.^ 
This  method  of  control  is  practically  unknown  in  the 
United  States. 

The  second  way  in  which  a  control  is  exercised 
over  the  ordinance  power  is  by  requiring  the  necessity 
of  the  approval  of  some  higher  administrative  author- 
ity before  the  ordinance  shall  go  into  effect.  This 
may  be  spoken  of  as  an  administrative  control.  In 
this  country,  however,  the  ordinance  power  of  adminis- 
trative authorities  is  seldom  subjected  to  an  admin- 
istrative control.^     Where  authorities  are  vested  with 

'  Sayre  Borough  vs.  Phillips,  148  Pa.  St.,  482. 

'  An  example  of  this  kind  of  control  over  the  ordinance  power  of  the  ad- 
ministration is  to  be  found  in  the  relations  of  the  English  Local  Government 
Board,  and  the  Board  of  Trade  with  Parliament.  It  is  frequently  the  case  that 
the  power  to  issue  provisional  orders,  as  they  are  called,  has  been  conferred 
upon  these  administrative  authorities,  but  these  provisional  orders,  before 
taking  effect,  must  always  be  confirmed  by  Parliament,  See  Maltbie,  English 
Local  Government  of  To-day,  page  250. 

*An  instance  of  such  an  administrative  control  over  ordinances  may  be 
found  in  the  power  the  State  Civil  Service  Commission  in  New  York  has  to 


EXPRESSION  OF  STATE  WILL.  329 

the  ordinance  power,  it  is  almost  never  the  case  that, 
before  the  ordinances  issued  as  a  result  of  its  exer- 
cise are  valid,  they  must  be  approved  by  any  other 
authority. 

The  common  control  over  ordinances  in  this  country 
is  the  judicial  control.  This  judicial  control  consists, 
in  the  first  place,  in  the  power  which  the  courts  have, 
when  individuals  are  brought  up  before  them  charged 
with  havinof  violated  an  ordinance  of  the  administra- 
tion,  to  examine  into  the  ordinance  for  the  purpose  of 
determining  whether  the  authority  which  issued  it 
was  under  the  law  competent  to  issue  it.  In  acting 
thus,  the  courts  are  merely  exercising  over  the  legis- 
lative power  of  the  administrative  ofificers  the  same 
control  which  it  is  recognized  they  may  exercise  over 
the  legislature  with  the  view  of  ascertaining  whether 
the  statutes  of  the  legislature  are  in  accord  with  the 
constitution.  In  the  second  place,  the  courts  have 
the  right,  in  the  case  of  local  ordinances,  issued  as  a 
result  of  the  exercise  of  the  independent  ordinance 
power,  or  of  the  general  ordinance  power,  to  declare 
as  void  and  illegal  all  ordinances  which  are  unreason- 
able.'     In  case,  however,  an  administrative  authority 

disapprove  the  civil-service  rules  of  cities  within  the  state.  See  Rogers  vs. 
Common  Council,  T23  N.  Y.,  173. 

'  Thus  it  has  been  held  that  ordinances  requiring  druggists  to  furnish  a 
quarterly  certified  statement  of  the  amount  and  quantity  of  intoxicating 
liquors  sold  by  them,  and  when  and  to  whom  they  were  sold,  are  unreason- 
able and  oppressive.  See  Clinton  vs.  Phillips,  58  111..  102  ;  11  Am.  Dec,  52. 
Similarly,  an  ordinance  which  required  cotton  merchants  to  keep  the  names  of 
the  sellers  of  loose  cotton  and  the  quantity  of  each  purchase  was  held  to  be 
against  the  principles  of  personal  liberty  and  the  common  right.  Long  vs. 
Taxing  Districts,  7  Lea,  Tenn.,  134.  The  courts  have  also  declared  municipal 
ordinances  which  were  in  restraint  of  trade  to  be  illegal.  See  the  case  of 
Sayre  Borough  vs.  Phillips.  148  Pa.  St..  4S2  :  33  Amer.  St.  Rep.,  842.  In  this 
case  the  courts  declared  illegal  an  ordinance  which  provided  that  all  peddlers 
not  residents  of  the  town  must  take  out  a  license. 


330  ADMINISTRATIVE  ACTION. 

has  been  given  express  power  by  the  legislature  to 
pass  an  ordinance  of  a  specified  and  defined  character, 
the  courts  will  not  interfere  on  the  ground  of  its  un- 
reasonableness, its  reasonableness  being  regarded  as 
a  matter  settled  by  the  granting  of  the  power  to  the 
corporation.^  In  such  a  case  all  that  the  courts  will  do 
will  be  to  construe  the  extent  of  the  grant  of  power 
to  the  ordinance-making  authority  and  the  constitu- 
tionality of  the  grant.^ 

All  ordinances  must,  as  a  general  rule,  in  order 
that  they  shall  have  force,  be  brought  by  some  means 
to  the  notice  of  those  persons  whom  they  will  affect. 
If  no  particular  method  is  provided  by  statute  for 
giving  such  notice  it  is  held  that  the  notice  need  not 
be  given  by  publication  in  a  newspaper,  but  posting 
copies  of  the  ordinance  in  public  places  within  the 
limits  of  the  district  which  it  affects  is  a  sufficient 
publication.  The  method  of  giving  such  notice  is, 
however,  generally  determined  in  the  statutes,  and 
since  the  object  of  publishing  police  ordinances  is  to 
give  notice  to  all  who  must  obey  them,  and  since  this 
class  of  regulations  operates  to  restrict  the  exercise  of 
the  personal  rights  of  the  citizens,  the  courts  often 
insist  upon  a  strict  and  literal  compliance  with  the 
terms  of  the  statute.^  The  ordinary  method  of  giv- 
ing the  necessary  notice  of  these  ordinances  is,  how- 

'  See  Haynes  vs.  Cape  May,  50  N.  J.  L.,  55. 

'  District  of  Columbia  vs.  Weyman,  4  Mackey,  328.  See  also  as  to  the 
ordinance  power  of  administrative  authorities  infra,  p.  337,  on  power  to  de- 
clare things  to  be  nuisances. 

^  Thus  where  alternate  methods  of  publication  are  allowed  by  statute  and  a 
board  of  health  or  other  designated  authority  is  required  to  direct  which  mode 
shall  be  adopted,  a  publication  ordered  by  a  clerk  of  his  own  motion  is  not 
valid.  The  authority  named  in  the  statute  must  point  out  in  which  one  of  the 
permitted  ways  the  publication  shall  be  made.    Higley  vs.  Bunce,  10  Conn.,  435, 


EXPRESSION  OF  STATE  WILL.  331 

ever,  by  publication  in  a  newspaper  of  general 
circulation  within  the  district  affected.^ 

2.  Special  administrative  acts. — But  just  as  the 
legislature  cannot  put  into  the  form  of  a  general 
command  all  of  the  duties  of  the  individual  and  ex- 
press in  all  its  details  the  will  of  the  state,  so  the  ad- 
ministration cannot  accomplish  this  purpose  by  means 
of  general  orders.  Thus  no  general  rule,  whether 
passed  by  the  legislature  or  adopted  by  the  adminis- 
tration can  declare  by  name  what  persons  shall  pursue 
those  trades  which  require  a  license,  or  what  persons 
or  property  shall  pay  direct  taxes  or  the  amount  in 
money  of  these  taxes.  All  that  can  be  done  by 
general  rule  is  to  determine  what  requirements  those 
persons  who  desire  to  pursue  licensed  trades  shall 
fulfil,  and  under  what  conditions  and  at  what  rates 
taxes  shall  be  levied  on  persons  and  property.  The 
general  rules  of  law  of  this  character  require  in  order 
that  they  may  be  executed  the  further  action  of  some 
administrative  authority  in  order  to  bring  the  con- 
crete case  within  the  operation  of  the  general  rule. 
This  action  necessitates  upon  the  part  of  the  admin- 
istration the  performance  of  a  great  many  acts  which 
affect  merely  one  particular  concrete  case. 

Thus  where  a  general  rule  of  law  states,  for  exam- 
ple, that  particular  classes  of  persons  shall  pay  taxes 
or  that  a  tax  shall  be  determined  in  amount  either  by 
the  extent  of  the  business  or  by  the  amount  of  the 
property  of  the  taxpayer,  before  it  can  be  ascertained 

'  In  such  case,  it  has  been  held  that  such  paper  need  not  be  a  local  paper, 
but  any  paper  circulating  generally  in  the  community  will  sufifice.  Tisdale  vs. 
Minouk,  46  111.,  9  ;  and  when  no  particular  paper  is  designated  by  the  authori- 
ties, the  clerk  may  lawfully  make  publication  in  any  paper  in  the  place.  In  rt 
Durkin.  10  Hun,,  269. 


332 


ADMINISl^RATIVE  ACTION. 


what  amount  of  tax  a  given  individual  shall  pay,  it  is 
necessary  that  it  be  determined  in  the  first  place, 
whether  he  is  one  of  the  class  which  is  liable  to  pay 
the  tax  ;  and,  in  the  second  place,  what  is  the  amount 
of  his  business  or  what  is  the  value  of  his  property. 
This  determination  must  be  made  by  an  administra- 
tive authority.  In  the  particular  case  this  adminis- 
trative authority  is  called  an  assessor  and  the  special 
act  which  he  performs  in  order  to  enforce  the  law  is 
known  as  an  assessment.  There  are  a  great  variety 
of  these  special  acts  of  individual  application  in  all 
the  various  branches  of  the  administration.  There 
is,  however,  no  generic  name  which  is  applied  to 
them.  Some  thus  are  called  orders,  others  precepts, 
others  warrants,  and  others  decisions.  Some  are  in 
the  form  of  commands  to  subordinate  officers  or  to 
individuals  to  do  or  to  refrain  from  doing  some  par- 
ticular thing,  as  tax  warrants,  orders  of  payment, 
nuisance-removal  and  sanitary  orders  ;  some  are  per- 
missions to  individuals  to  carry  on  a  given  business,  as, 
for  example,  licenses  and  authorizations  ;  some  are 
prohibitions  to  carry  on  a  business,  as,  for  example,  re- 
vocations of  licenses  or  authorizations.  Some  are 
acts  which  create  new  legal  persons,  as,  for  example, 
charters  of  corporations.  Some  are  contracts,  made 
by  the  administration  for  the  government,  acting  as  a 
subject  of  private  law.  Some  are  decisions  as  to  the 
existence  of  certain  facts,  as,  for  example,  assess- 
ments, appraisements,  classifications  of  articles  for 
duty  in  the  customs  administration  ;  and,  finally,  some 
are  appointments  to  ofifice  or  orders  to  individuals  to 
serve  the  government  in  some  capacity,  as  notice  to 
serve  as  jurors  or  in  the  military  service. 


EXPRESSION  OE  STATE  WILL.  333 

The  action  necessitated  on  the  part  of  the  adminis- 
tration in  order  to  perform  these  acts  is  action  which 
often  closely  resembles  what  we  are  accustomed  to  call 
judicial  action.  Take,  for  example,  the  case  of  the  as- 
sessment of  property  for  the  purpose  of  taxation.  It  is 
necessary,  in  order  that  the  value  of  property  liable  to 
taxation  be  determined,  that  the  assessors  receive 
evidence  and  come  to  a  determination  both  as  to  the 
legal  liability  of  the  owner  and  of  the  particular  piece 
of  property  to  taxation,  and  as  to  its  value.  In  the 
same  way  in  the  case  of  election  officers,  it  is  neces- 
sary that  they  determine,  for  example,  when  a  man 
presents  himself  to  vote,  whether  he  is  legally  quali- 
fied. Indeed,  under  the  original  English  system  of 
administration,  as  well  as  under  that  which  obtained 
generally  in  this  country  during  the  colonial  period, 
and  which  obtains  even  now  in  certain  of  the  states 
which  have  not  had  the  greatest  administrative  devel- 
opment, many  of  these  duties  were  and  are  entrusted 
to  officers  discharging  at  the  same  time  judicial 
functions.  The  most  marked  instance  of  such  an 
officer  is  the  English  justice  of  the  peace.  As,  how- 
ever, our  administration  has  developed,  the  tendency 
has  been  towards  differentiation — towards  confining 
the  action  of  judicial  officers  to  the  decision  of  con- 
flicts arising  between  either  individuals  or  between 
individuals  and  the  government,  and  towards  assign- 
ing all  this  class  of  work,  notwithstanding  its  simi- 
larity to  judicial  action,  to  special  officers  who  are  in 
no  way  connected  with  the  administration  of  justice. 

The  grant  of  these  powers  to  administrative  officers 
is  regarded  as  perfectly  constitutional  and  proper,  not- 
withstanding the  fact  that  the  result  of  the  exercise 


334  ADMINISTRATIVE  ACTION. 

of  the  powers  granted  will  often  be  a  serious  en- 
croachment upon  the  rights  of  private  property  and 
personal  liberty  guaranteed  by  the  constitution.  It 
has  been  held,  thus,  that  the  determination  by  an  ad- 
ministrative officer  of  the  amount  of  tax  that  an 
individual  is  to  pay,  or  the  determination  by  an 
administrative  officer  that  oriven  conditions  are  un- 
sanitary,  the  result  of  the  determination  being  the 
necessity  of  the  expenditure  upon  the  part  of  the 
owner  of  a  large  amount  of  money,  either  to  dis- 
charge his  tax  liability  or  to  bring  his  property  into  a 
sanitary  condition,  is  not  in  violation  of  the  constitu- 
tional provisions  requiring  due  process  of  law  in 
order  that  any  citizen  may  be  deprived  of  his 
property.^ 

An  interesting  question  in  connection  with  these 
administrative  determinations  is  whether  they  may 
constitutionally  be  made  final  by  statute.  There  are 
very  few  cases  upon  this  point,  although  there  are 
numerous  dicta  which  are  absolutely  conflicting.  Let 
us  consider  the  question,  first,  from  the  point  of  view 
of  the  constitution  of  the  United  States;  in  other 
words,  let  us  see  what  is  the  due  process  of  law  called 
for  by  the  Fourteenth  Amendment.  For  the  main, 
if  not  the  only,  objection  to  vesting  this  power  of  final 
determination  in  administrative  bodies  is  that  an  ad- 
ministrative proceeding  which  finally  determines  is 
not  due  process  of  law. 

The  United  States  Supreme  Court  has  refused  to 
give  us  a  definition  of  due  process  of  law,  preferring 
to  decide,  as  concrete  cases  come  before  it,  whether 

'  See  the  case  of  McMillen  vs.  Anderson,  95  U.  S  ,  37  ;   and  Department  o* 
Health  &c.  vs.  The  Rector  &c    of  Trinity  Church,  1^5  N.  Y.,  32. 


EXPRESSION  OF  STATE  WILL.  335 

the  methods  followed  in  such  cases  are  consistent 
with  the  constitution.^  The  court  has,  however, 
indicated,  first,  that  due  process  of  law  is  to  be  deter- 
mined by  the  state  legislature,^  and,  second,  that  any 
judicial  proceeding  is  due  process  of  law  where  the 
tribunal,  before  which  the  proceeding  is  had,  has  by 
the  law  of  the  state  jurisdiction  of  the  subject  matter, 
and,  in  case  of  a  determination  resulting  in  a  personal 
liability,  where  the  defendant  has  notice  and  an  op- 
portunity to  be  heard.^ 

The  Supreme  Court  has  not,  however,  decided 
whether,  if  these  conditions  are  observed,  all  final 
determinations  by  administrative  authorities  are  due 
process  of  law,  but  several  decisions  of  the  court  have 
settled  the  question  that  in  the  classes  of  cases  to 
which  they  refer  final  administrative  determinations 
are  due  process  of  law. 

In  the  first  place,  it  has  been  held  that,  if  the 
statute  so  provides,  the  ascertainment  by  the  admin- 
istrative officers  of  the  government  of  the  amount  of 
indebtedness  due  the  government  from  one  of  its 
officers  who  is  a  receiver  of  public  moneys  is  due 
process  of  law,  even  if  the  law  provides  that  the  in- 
debtedness so  determined  is  to  be  collected  sum- 
marily without  resort  to  the  courts  ;  in  other  words, 
that  it  is  due  process  of  law  to  provide  that  the 
determination  of  administrative  officers  shall  in  such 
cases  have  the  force  and  effect  of  the  judgment  of  a 
court,  and  may  not,  therefore,  be  attacked  in  a  col- 
lateral  proceeding,  except   as  to  the  jurisdiction  of 

'  See  Davidson  vs.  New  Orleans,  96  U.  S.,  97, 

*  Walker  vs.  Sauvinet,  92  U.  S.,  90. 

*  Pennoyer  vs.  Neff,  95  U.  S.,  714. 


336  ADMINISTRATIVE  ACTION. 

the  officer  making  the  determination.^  Such  is  the 
general  rule  with  regard  to  assessments  of  property 
for  taxation.^ 

In  the  second  place,  the  determination  by  adminis- 
trative officers  of  the  amount  of  tax  a  given  indi- 
vidual shall  pay  is  held,  in  the  case  of  a  license  tax, 
to  be  due  process  of  law,  even  if  such  individual  has 
had  no  opportunity  to  be  heard  before  the  authority 
assessing  the  tax.  In  this  case,  however,  the  law 
gave  the  individual  the  power  to  sue  out  an  in- 
junction to  restrain  the  collection  of  the  tax.^ 

Finally,  it  is  held  that  it  is  due  process  of  law  to 
vest  in  administrative  officers  the  final  determination 
as  to  the  right  of  an  alien  to  land  in  the  United 
States  under  a  statute  excluding  certain  classes  of 
aliens  from  admission  into  the  United  States.'* 

On  their  face  these  decisions,  or  rather  the  opinions 
in  which  they  are  given,  would  seem  to  go  a  long 
way  toward  laying  down  the  rule  that  it  is  perfectly 
consistent  with  due  process  of  law  to  vest  in  adminis- 
trative officers  the  final  determination,  after  a  hearing 
of  the  persons  concerned,   of  facts  upon  which   the 

'  Murray's  Lessee  vs.  Hoboken  Land  and  improvement  Co.,  i8  How.,  272. 

*  Barhyte  z/j.  Sheperd,  35  N.  Y.,  238;  Mygatt  vs.  Washburn,  15  N.  Y., 
316. 

^McMillen  vs.  Anderson,  95  U.  S.,  37  ;  see  also  Gary  vs.  Curtis,  3  How- 
ard,  236. 

*  Nishimura  Ekiu  vs.  United  States,  142  U.  S.,  651,  where  Mr.  Justice 
Gray,  who  delivered  the  opinion  of  the  court,  said  :  "  The  final  determination 
of  these  facts  [that  is  the  facts  on  which  the  right  of  an  alien  to  land  depends] 
may  be  entrusted  by  Congress  to  executive  officers,  and  in  such  a  case,  as  in  all 
others  in  which  a  statute  gives  a  discretionary  power  to  an  officer, to  be  exercised 
by  him  upon  his  own  opinion  of  certain  facts,  he  is  made  the  sole  and  exclusive 
judge  of  the  existence  of  those  facts,  and  no  other  tribunal,  unless  expressly 
authorized  by  law  to  do  so,  is  at  liberty  to  re-examine  or  controvert  the  suffi- 
ciency of  the  evidence  on  which  he  acted."  See  also  Buttfield  vs.  Stranar 
ban,  192  U.S.,  470. 


EXPRESSION  OF  STATE  WILL.  337 

right  to  property  or  liberty  depends.  It  is,  however, 
to  be  remembered  that  these  cases — that  is,  cases  of 
government  officials,  tax  and  importation  cases,  and 
cases  of  the  admission  of  aliens — were  decided  largely 
in  view  either  of  historical  considerations  or  of  the 
plenary  power  of  the  government  to  regulate  foreign 
commerce  and  to  expel  aliens/  It  cannot,  therefore, 
be  said  that  under  the  decisions  of  the  United  States 
Supreme  Court  it  is  absolutely  certain  that  the  power 
of  final  determination  may  constitutionally  be  vested, 
in  all  cases,  in  an  administrative  authority  where 
such  determination  seriously  infringes  upon  private 
rights. 

When  we  come  to  the  consideration  of  the  rule,  as 
it  has  been  laid  down  by  the  courts  of  the  various 
states,  we  cannot  be  much  more  certain  than  we  are 
in  the  case  of  the  decisions  of  the  United  States 
Supreme  Court,  for,  while  there  are  a  number  of 
cases  which  would  seem  to  indicate  that  this  power  of 
final  determination  may  constitutionally  be  vested  in 
administrative  authorities,  these  cases  are,  as  a  rule, 
pretty  early  in  point  of  time,  and  the  later  dicta  of 
the  courts  would  seem  to  indicate  a  tendency  to  de- 
part from  the  early  rule. 

The  decisions  of  the  state  courts  which  have  been 
made  upon  this  subject  may  be  put  into  two  classes  : 
In  the  first  class  are  those  which  recognize  that  a  de- 
termination of  a  board  of  health  with  regard  to  the 
existence  of  a  nuisance  is,  provided  a  hearing  is  given 

'  One  noticeable  reason  for  the  decision  both  in  the  case  of  Murray's  Lessee 
vs.  The  Hoboken  Land  and  Improvement  Co.,  and  in  that  of  McMillen  vs. 
Anderson  was  the  historical  usage  of  the  English  Crown  and  the  American 
governments,  while  the  fact  that  Ekiu  was  an  alien  who  never  had  a  domicile 
in  the  United  States  had  just  as  much  efifect  on  the  decision  in  her  case. 


338  ADM  IN  IS  TEA  TIVE  A  C  TION. 

to  the  party  affected,  final,  so  far  as  any  collateral 
proceeding  is  concerned.  But  a  condition  of  the 
finality  of  such  a  determination  of  an  administrative 
authority  is,  in  some  of  the  cases,  the  possibility  of 
reviewing  it  by  some  direct  judicial  proceeding  like 
certiorari.  When  it  is  remembered  that  at  the  time 
these  decisions  were  made  certiorari  was  made  use 
of  merely  to  review  questions  of  jurisdiction  and  reg- 
ularity of  proceedings,  it  will  be  seen  that  the  finality 
of  the  determination  upon  the  question  of  fact  was  not 
really  much  encroached  upon  by  this  limitation.  It 
may  therefore  be  said  that  this  first  class  of  decisions 
goes  a  long  way  towards  supporting  the  proposition 
that  the  determination  of  a  board  of  health  as  to  the 
existence  of  a  nuisance  may  constitutionally  be  made 
final.^ 

'  The  first  class  of  decisions  are  illustrated  by  the  case  of  Van  Wormer  vs. 
The  Mayor  &c.  of  Albany,  1 5  Wend. ,  262.  In  this  case  it  was  held  that  a  deter- 
mination, made  after  a  hearing,  that  a  thing  was  a  nuisance,  not  overruled  by 
direct  proceedings,  such  as  certiorari^  could  not  be  reviewed  in  an  action  for 
trespass  brought  against  a  health  officer,  and  that  it  was  not  error  in  such  an 
action  to  refuse  evidence  that  the  thing  complained  of  was  not  actually  a 
nuisance.  Some  of  the  cases,  however,  make  the  constitutionality  of  the  law  pro- 
viding for  such  final  determination  dependent  on  the  right,  accorded  by  statute 
to  the  individual  concerned,  of  a  hearing  before  the  administrative  authority 
making  the  determination.  Cases  of  this  character  are  Kennedy  vs.  The 
Board  of  Health,  2  Pa.  St.,  366,  and  Metropolitan  Board  of  Health  vs. 
Heister,  37  N.  Y.,  661.  The  first  case  holds  that  a  determination  of  a  board 
of  health  that  a  thing  is  a  nuisance  is  final  under  the  Pennsylvania  statute,  and 
that  on  a  suit  to  collect  expenses  or  abate  the  nuisance  the  defendants  could  not 
offer  evidence  to  show  that  there  was  no  nuisance.  In  the  second  case  the 
court  says  :  "  Before  leaving  the  consideration  of  this  constitutional  objection 
[namely,  that  one  is  being  deprived  of  property  without  due  process  of  law 
and  without  trial  by  jury],  it  ought,  perhaps,  to  be  observed  that  the  act  pro- 
vides for  notice  to  the  party  affected,  before  the  judgment  finally  passes 
against  him.  In  substance  the  board  upon  the  evidence  before  it  determine 
that  a  prima-facie  case  exists  requiring  their  action.  In  the  present  instance, 
after  such  preliminary  determination  made,  notice  was  given  to  Heister  of 
what  had  been  done,  and  that  he  could  be  heard  upon  the  subject,  with  his 


EXPRESSION  OF  ST  A  TE  WILL.  339 

It  may  be  said  therefore  that  both  the  decisions  of 
the  state  courts  and  those  of  the  Supreme  Court  of 
the  United  States  would  seem  to  indicate  that  it  is 
constitutional  from  the  point  of  view  both  of  the 
United  States  Constitution  and  of  the  state  constitu- 
tions to  vest  in  administrative  authorities  the  power, 
after  a  hearing,  of  making  a  final  determination, 
as  to  matters  within  their  jurisdiction,  even  though 
the  determination  may  seriously  affect  rights  of 
property. 

Special  orders,  like  ordinances,  must  generally  be 
brought  to  the  notice  of  the  persons  whom  they 
affect. 

witnesses,  at  a  time  designated.  This  gave  the  same  protection  to  all  his 
rights  as  if  notice  had  been  served  upon  him  before  any  preliminary  proceed- 
ings had  been  taken.  He  refuses  to  litigate  before  the  board  the  question 
whether  his  pursuit  is  dangerous  to  the  public  health.  .  .  .  He  cannot 
complain  now  that  their  judgment  upon  the  facts  is  to  be  held  conclusive 
upon  him."  As  a  result  the  court  refused  to  issue  an  injunction  to  prevent 
the  enforcement  of  the  order  of  the  board  of  health  to  abate  the  nuisance. 
See  also  Green  vs.  Mayor  of  Savannah,  6  Ga.,  i.  In  support  of  the  rule  thus 
laid  down  are  to  be  found  a  number  of  dicta  in  the  state  courts.  The  strongest 
of  these  are  to  be  found  in  Salem  vs.  The  Eastern  R.  R.  Co.,  98  Mass.,  431, 
and  People  ex  rel  Copcutt  vs.  Board  of  Health,  140  N.  Y.,  i.  See  also 
Bates  &  Guild  Co.  vs.  Payne,  194  U.  S.,  106  ;  Public  Clearing  House  vs.  Coyne, 
194  U.  S.,  497,  supra^.  147.  Opposed  to  the  rule  laid  down  in  these  decisions 
is  a  dictum  in  a  recent  case  in  the  New  York  Court  of  Appeals,  Department 
of  Health  &c.  vs.  The  Rector  &c.  of  Trinity  Church,  145  N.  Y.,  32.  This 
case  decided  that  a  penalty  might  be  recovered  for  violation  of  an  order  of 
the  Health  Department  to  comply  with  the  law  requiring  water  to  be  furnished 
"in  sufficient  quantity  at  one  or  more  places  in  each  floor"  of  any  house 
occupied  by  one  or  more  families,  although  such  order  was  given  without 
notice.  In  the  course  of  the  opinion  Judge  Peckham  says  :  "  Where  property 
of  an  individual  is  to  be  condemned  and  abated  as  a  nuisance,  it  must  be  that 
somewhere  between  the  institution  of  the  proceedings  and  the  final  result  the 
owner  shall  be  heard  in  the  courts  upon  that  question,  or  else  he  shall  have  an 
opportunity  when  calling  upon  those  persons  who  destroyed  his  property  to  ac- 
count for  the  same,  to  show  liiat  the  alleged  nuisance  was  not  one  in  fact. 
No  decision  of  a  board  of  health,  even  if  made  on  a  hearing,  can  conclude  the 
owner  upon  the  question  of  nuisance." 


340  ADMINISTRATIVE  ACTION. 

The  manner  of  giving  such  notice  is  usually  prescribed  by 
statute,  and  in  such  cases  the  terms  of  the  statute  must  be  liter- 
ally and  precisely  complied  with.  In  the  absence  of  explicit 
directions  in  the  statute,  the  orders  must  be  served  by  delivering 
copies  to  the  persons  to  whom  they  are  directed  personally,  or 
by  leaving  copies  at  the  last  known  place  of  abode  of  such  per- 
sons, if  they  are  known  and  reside  within  the  state,'  or  if  personal 
service  cannot  be  made,  or  if  the  premises  to  which  the  order 
refers  are  unoccupied,  and  the  residence  of  the  owners  or 
agents  is  unknown,  by  posting  them  in  a  conspicuous  place  on 
the  premises  and  advertising  in  one  or  more  public  newspapers 
in  such  manner  or  for  such  length  of  time  as  the 
[authority  issuing  the  order]  may  direct.  In  the  absence  of  any 
prescribed  length  of  time  it  must  be  such  as  to  afford  reasonable 
opportunity  for  compliance  or  for  demanding  a  hearing  or  a 
reconsideration  of  the  matters  to  which  the  order  relates." 

In  the  case  of  a  great  many  of  the  orders  notice  is 
not,  however,  absolutely  essential. 

3.  Procedure  to  be  followed. — In  the  performance 
of  these  acts,  both  of  a  general  and  a  special  charac- 
ter, the  administrative  authorities  must  follow  a  cer- 
tain procedure  which  is  laid  down  in  the  law  granting 
the  power  to  act.  The  law  thus  says  in  the  first 
place  that  certain  acts  shall  be  performed  only  by 
certain  authorities.  The  authority  before  acting  in 
any  of  these  cases  must  assure  itself  that  it  has 
jurisdiction,  for  its  acts  will  be  void  if  it  exceeds 
its  jurisdiction. 

The  jurisdiction  of  an  administrative  authority  is 
dependent,  in  the  first  place,  on  territorial  limitations. 
"The  authority  of  public  officers  being  derived  from 
the  law,  it  necessarily  follows  that  the  authority  cannot 

'  See  Mason  vs.  Bibby,  2  H.  &  C,  88i  ;  Gould  w.  The  City  of  Rochester, 
105  N.  Y.,  46. 

*  Parker  and  Worthington,  op.  cit.,  §  89.  See  also  Metropolitan  Board  of 
Health  vs.  Heister,  37  N.  Y.,  661. 


EXPRESSION  OF  STATE  WILL.  341 

exist  in  places  where  that  law  has  no  effect.  The 
authority  of  all  public  officers  is  therefore  limited 
and  confined  to  that  territory  over  which  the  law,  by 
virtue  of  which  they  claim,  has  sovereign  force. 
Thus  a  state  officer  can  exercise  no  official  author- 
ity beyond  the  confines  of  the  state."*  This  is  not 
only  true  of  public  officers  in  general,  it  is  also  par- 
ticularly true  of  those  having  jurisdiction  within 
the  lesser  municipal  subdivisions,  such  as  counties, 
towns,  and  cities.  A  sheriff,  for  example,  cannot  exe- 
cute civil  process  outside  of  his  county^;  nor  can  a 
United  States  marshal  execute  a  process  outside  of 
his  district.^ 

The  jurisdiction  of  officers  depends,  in  the  second 
place,  upon  whether  the  law  has  given  them  the 
power  to  act  in  the  specific  case.  For  the  right  to 
exercise  the  powers  of  a  public  office  must  find  its 
source  in  some  provision  of  law.^  This  law  may, 
however,  be  the  common  law.  There  are  a  series 
of  officers,  such  as  the  sheriff,  who  are  known  as 
common-law  officers,  and  whose  powers  are  thus  not 
determined  by  any  statute,  but  by  the  decisions  of 
the  courts.  As  a  general  thing,  however,  the  juris- 
diction of  officers  is  determined  by  the  provisions  of 
the  statute  law.  Where  the  legislature  has  thus  con- 
ferred powers  upon  officers  by  statute,  the  statute  is 
usually  subjected  to  a  strict  interpretation.^  There- 
fore   "when    officers    undertake    by    virtue    of    the 

'  Mechem  op.  cii.,  §  508.  See  also  Jackson  vs.  Humphrey,  i  Johnson,  N. 
Y.,  498. 

'^  See  Page  vs.  Staples,  13  R.  I.,  306. 

^  Carr  vs.  Phillips,  39  Mich.,  319. 

■•See  Attorney  General  vs.  Detroit  Common  Council,  58  Mich.,  213-219; 
also  reported  in  55  Am.  Rep.,  675. 

'  See  Mayor  of  Baltimore  vs.  Reynolds,  20  Md.,  I  ;   83  Am.  Dec,  535. 


342  AD  MINIS  TRA  TIVE  A  CTION. 

authority  conferred  upon  them  to  build  up  rights 
against  third  persons,  especially  where  their  acts 
may  result  in  penalties  or  forfeitures  against  such 
persons,  the  limits  and  conditions  imposed  upon 
their  authority  must  be  rigidly  observed  or  their 
acts  will  be  unavailing."  ^  All  administrative  officers 
are  regarded  as  tribunals  of  special  jurisdiction.  The 
effect  of  this  treatment  of  administrative  officers 
is  that  their  power  to  do  a  particular  thing  is  never 
presumed.  Any  one  who  claims  any  rights  under 
their  actions  must  show  affirmatively  that  they  had 
power  to  do  the  thing  whose  validity  is  in  question.' 
Exception  to  this  rule  is  sometimes  made  by  statute, 
as,  for  example,  in  the  case  of  tax  officers. 

Finally,  it  is  to  be  noted  that,  although  the  general 
rule  is  that  officers  may  exercise  discretionary  powers 
as  best  suits  them,  at  the  same  time  the  discretion 
which  is  given  to  them  is  not  an  arbitrary  one,  but  is 
what  is  understood  as  legal  discretion,  and  will  not 
permit  them  to  take  any  arbitrary,  capricious,  inquisi- 
torial, or  oppressive  proceedings.^ 

Not  only  must  the  administrative  authority  have 
jurisdiction  to  act  in  the  particular  district,  and  the 
power  to  do  the  particular  act  in  question,  but  also 
the  act  in  question  must  be  performed  in  the  way 

'  Mechem,  op.  cit.,  §  511. 

"  See  Lowry  vs.  Erwin,  6  Robinson,  La.,  192  ;  39  Am.  Dec,  556. 

^Thus  in  the  case  of  State  vs.  Board  of  President  and  Directors,  134  Mo., 
296,  also  reported  in  56  Am.  St.  Rep.,  503,  it  was  held  that  a  board  of  school 
directors  is  guilty  of  gross  abuse  of  discretion  in  selecting,  for  purely  partisan 
purposes,  judges  and  clerks  of  election  of  the  same  political  party  for  election 
of  members  of  such  board,  and  arbitrarily  refusing  to  select  election  officers 
from  different  political  parties,  and  that  the  supreme  court  may,  by  manda- 
mus^ compel  such  board  to  rescind  the  selection  of  election  officers  so  made, 
and  to  select  them  from  the  different  political  parties.  Cf.  Mechem,  op.  cit., 
sec.  513. 


EXPRESSION  OF  STATE  WILL.  343 

provided  for  in  the  law.  This  is  particularly  true  if 
the  way  provided  for  by  law  has  been  provided  in 
order  to  protect  individual  rights.^  This  rule  is 
particularly  applicable  to  all  cases  of  the  assessment  of 
property  for  taxation,^  and  to  cases  where  the  action 
of  the  officer  will  result  in  depriving  the  individual  of 
his  property,  as  in  the  case  of  the  sale  of  land  for  the 
non-payment  of  taxes,  or  the  exercise  of  the  right  of 
eminent  domain.^  The  rule  is  applicable  also  to  the 
method  of  procedure  prescribed  for  the  making  of 
contracts  upon  the  part  of  governmental  officers. 
Thus,  it  has  been  held  that,  if  a  municipal  corpora- 
tion may  by  law  contract  only  in  a  prescribed  way,  as 
after  publishing  specifications  and  inviting  bids  and 
awarding  the  contracts  to  the  lowest  bidder,  no  con- 
tract which  is  attempted  to  be  made  in  any  other  than 
the  prescribed  way  will  be  legal/ 

It  is  very  commonly  provided,  in  the  case  of  ad- 
ministrative decisions  whose  effect  is  to  deprive  the 
individual  of  his  property  rights,  that  opportunity 
must  be  given  to  all  persons  who  are  interested  in  the 
decision  to  make  any  objections  which  they  may 
desire  to  make  to  the  proposed  action.  Where  such 
provisions  of  law  are  made  they  are  regarded  as  abso- 
lutely mandatory,  and  failure  to  give  notice  of  the 
proposed  action,  or  an  opportunity  for  a  hearing,  will 
result  in  the  invalidity  of  such  proceedings.^  Indeed, 
the  courts  have  held  that  the  "  due  process  of  law " 

'  See  French  z' J-.  Edwards,  13  Wall.,   506. 
'  See  Cooley,  Law  of  Taxation,  2d  ed.,  280  et  seq. 

'  See  Dillon,  Afunicipal  Corporations,  vol.  ii.,   706  ;  Mechem,    op.  eit.,  sec. 
581. 

*  McDonald  vs.  New  York,  68  N.  ¥.,  23. 
^  See  Cooley,  Law  of  Taxation,  p.  483. 


344  ADMINISTRATIVE  ACTION. 

required  by  the  fourteenth  amendment  to  the  United 
States  Constitution  for  the  talcing  of  private  property 
makes  the  opportunity  to  be  heard  at  some  stage  of 
the  proceeding  a  necessary  formaHty  in  property  tax 
assessments.^ 

Offices,  as  we  have  seen,  are  often  organized  as 
boards,  and  the  statute  frequently  prescribes  the 
method  by  which  these  boards  shall  act.  Any  other 
method  of  action  than  the  one  prescribed  will  make 
the  act  so  performed  absolutely  void  and  of  no  effect.^ 
Thus,  if  the  law  clearly  provides  for  the  joint  act  of  all, 
a  majority  cannot  take  valid  action.^  In  the  absence, 
however,  of  such  a  provision,  the  general  rule  is  that  a 
majority  of  the  entire  membership  of  the  board  will 
constitute  a  quorum,  which  may  act  also  by  a  majority 
vote.^  But  "  the  rule  permitting  a  majority  to  act 
implies  that  a  full  board,  as  required  bylaw,  is  actually 
in  existence.  Thus,  where  by  law  a  board  cannot 
consist  of  less  than  three  members,  and  only  two 
qualify,  the  two  cannot  act,  for  there  is  then  no  board 
of  which  the  two  would  constitute  a  majority."^  The 
act  of  a  majority  can  be  upheld,  however,  only  when 
the  conditions  provided,  either  by  statute  or  by  the 

'  See  San  Mateo  County  vs.  Railroad  Co.,  13  Fed.  Rep.,  722  ;  Stuart  z/f. 
Palmer.  74  N.  Y.,   183. 

^  McCortle  vs.  Bates,  29  Ohio  St.,  419;  23  Am.  Repts.,  758.  Here  indi- 
vidual members  of  a  school  board  had,  in  writing,  agreed  to  a  contract  to  pur- 
chase supplies  for  the  district,  and  had,  in  the  same  document,  requested  a 
special  meeting  of  the  board  to  be  called,  and  they  agreed  with  each  other  thai; 
they  would  ratify  the  contract  at  such  meeting.  The  court  held  the  contract  so 
agreed  upon  to  be  void. 

3  See  First  Nat'l  Bank  vs.  Mt.  Tabor,  52  Vt.,  87  ;  36  Am.  Rep.,  734. 

*  Ibid.,  Williams  vs.  School  District,  21  Pickering,  Mass.,  75  ;  32  Am.  Dec, 
243  ;   Rushville  Gas  Co.  vs.  Rushville,  121  Ind. ,  206. 

*  Mechem  op.  cit.,  sec.  575  ;  see  also  Williamsburg  vs.  Lord,  51  Maine,  599  ; 
Downing  vs.  Rugar,  21  Wendell,  N,  Y.,  178. 


EXPRESSION  OF  ST  A  TE  WILL.  345 

general  rule  of  law,  requiring  notice  and  so  on,  exist, 
for  if,  e.  g.,  one  member  of  a  board  of  three  "  took  no 
part  in  the  transaction,  and  was  ignorant  of  what  was 
done,  gave  no  implied  consent  to  the  action  of  the 
others,  and  was  neither  consulted  by  them  nor  had 
any  opportunity  to  exert  his  legitimate  influence  in 
the  determination  of  the  course  to  be  pursued,"  the 
action  of  the  majority  would  be  void.^  "  It  will  be 
presumed,"  however,  "  in  the  absence  of  anything  to 
the  contrary,  that  all  members  of  a  board  met  and 
deliberated,  or  were  duly  notified,^  unless  the  statute 
requires  an  express  statement  of  that  fact  in  the 
record.  If  that  be  required,  parol  evidence  of  the 
fact  is  inadmissible."* 

'  Schenck  vs.  Peay,  i  Woolworth,  C.  C  Rep.,  175. 

^  McCoy  vs.  Curtice,  9  Wend.,  17  ;  24  Am.  Dec,  113. 

*  Mechem,  op.  cit.,  sec.  573  ;  People  vs.  Williams,  36  N.  Y.,  44I. 


CHAPTER  III. 

EXECUTION  OF  THE  WILL  OF  THE  STATE. 

/. — Means  of  execution. 

The  will  of  the  state,  whether  expressed  in  statute, 
ordinance,  or  special  act  of  individual  application, 
always  contains  either  expressly  or  impliedly  the  com- 
mand that  it  shall  be  executed.  Various  means  are 
adopted  to  insure  its  execution.  The  first  to  be  men- 
tioned is  : 

I.  Imposition  of  penalties. — These  penalties  may 
consist  of :  First,  fines ;  second,  forfeiture  of  prop- 
erty and  privileges  ;  and  third,  arrest  and  imprison- 
ment. They  are  usually  provided  for  by  legislation, 
but  it  is  competent  for  the  legislature  to  vest  the 
power  of  sanction,  i.  e.,  the  provision  of  penalty,  in 
the  officers  of  the  administration.  It  is  often  the 
case  that  municipal  corporations  and  boards,  such  as 
boards  of  health,  have  the  right  to  impose  penalties 
for  the  violation  of  their  ordinances  or  orders.  The 
rules  with  regard  to  the  imposition  of  the  various 
kinds  of  penalties  are  somewhat  different  in  accord- 
ance with  the  character  of  the  particular  penalty 
which  it  is  desired  to  impose.  It  is  thus  recognized 
as  within  the  power  of  an  authority,  which  has  the 
right  to  issue  ordinances  or  special  orders,  to  sanction 

346 


EXECUTION  OF  ST  A  TE  WILL.  347 

such  orders  and  ordinances  by  reasonable  penalties 
in  the  nature  of  fines.  But  in  the  absence  of  specific 
legislative  authorization  it  is  held  that  this  penalty 
may  not  consist  of  anything  but  a  fine.^  The  reason- 
ableness of  the  fine  imposed  is,  in  the  absence  of  a 
statute,  subject  to  the  control  of  the  courts.^  Gener- 
ally, however,  the  law  fixes  a  maximum  fine  which 
may  be  imposed.  Where  this  has  been  fixed  by 
statute,  it  may  not  be  exceeded  directly  or  indirectly — 
that  is,  by  multiplying  the  offence  or  by  making  it 
several.^ 

Penalties  in  the  nature  of  fines  for  the  violation  of 
ordinances  are  ordinarily  to  be  collected  by  an  action 
for  debt,  which  insures  the  control  of  the  courts  over 
the  exercise  of  the  ordinance  power.  Thus  it  has 
been  held  that  the  non-payment  of  these  fines  may 
not,  in  the  absence  of  a  statute  to  that  effect,  be  pun- 
ished by  imprisonment  to  be  provided  by  the  sanction- 
ing authority'*;  nor  under  similar  conditions  may  such 
fines  be  collected  by  distress  and  sale.^ 

It  is,  however,  frequently  the  case  that  the  legisla- 
ture declares  that  the  violation  of  the  ordinances  of 
administrative  authorities  shall  be  a  misdemeanor 
which  shall  be  punished  by  arrest  and  imprisonment. 
This  it  is  perfectly  competent  for  the  legislature  to  do. 
Further,  it  is  also  competent  for  the  legislature  to 
"  declare  the  possession  of  certain  articles  of  property, 

■See  Mayor  of  Mobile  vs.  Yuille,  3  Ala.,  137  ;  36  Am.  Dec,  441.  Breis- 
wick  vs.  Brunswick,  51  Ga. ,  639  ;  21  Am.  Rep.,  240.  Thus  the  right  to  im- 
pose fines  does  not  include  the  right  to  decree  a  forfeiture  of  property.  White 
vs.  Tallman,  2  Dutcher,  N.  J.  L.,  67. 

« In  the  Matter  of  Ah  You,  88  Cal.,  99, 

'Chicago  vs.  Quimby,  38  111.,  274. 

*See  Breiswick  vs.  Brunswick,  51  Ga.,  639  ;  21  Am.  Rep,,  240. 

'See  White  vs.  Tallman,  2  Dutcher,  N.  J.  L.,  67. 


348  ADMINISTRATIVE  ACTION. 

either  absolutely  or  when  held  in  particular  places  or 
under  particular  circumstances,  to  be  unlawful,  because 
they  would  be  injurious,  dangerous,  or  noxious,"  and 
to  provide  through  proceedings  in  rem  for  the  seizure, 
confiscation,  removal,  or  destruction  of  the  noxious 
articles.^  "  This  right  has  been  exercised  by  the 
legislature  in  respect  of  the  places  where  intoxicating 
liquors  are  manufactured  or  sold  in  violation  of  law, 
and  of  all  the  articles  and  appliances  used  in  or  about 
the  manufacture  or  sale  of  such  liquors,  and  in  respect 
of  adulterated  or  unwholesome  articles  of  food  and 
impure  and  adulterated  milk  and  dairy  products,  and 
in  respect  of  various  other  kinds  of  personal  property 
in  possession  or  use  in  violation  of  quarantine  or 
health  laws  or  of  a  character  likely  to  prove  noxious 
to  the  public."^ 

This  power  of  the  legislature  is,  however,  subject 
to  the  same  limitations  which  limit  the  right  of  the 
legislature  in  respect  to  all  legislation  affecting  the 
liberty  or  property  of  the  citizens.  It  must  not  be 
exercised  arbitrarily,  /.  e.,  without  reasonable  relation 
to  the  accomplishment  of  a  lawful  purpose.  Thus  it 
would  be  beyond  the  legitimate  scope  of  legislative 
authority  to  declare  that  to  be  a  nuisance  which  is 
clearly  not  a  nuisance.^ 

2.  Enforced  performance  of  the  act  ordered. — Some 
times  the  execution  of  the  will  of  the  state  will  not 
be  effected  by  the  imposition  of  a  penalty.  The 
individual  upon  whom  the  penalty  is  imposed  may 
prefer  to  suffer  the  penalty  and  continue  in  his  oppo- 

•  See  Fisher  vs.  McGirr,  i  Gray,  i. 

'Parker  and  Huntington,    The  Law  of  Public  Health  and  Safety,  271;    see 
also  Mugler  vs.  Kansas,  123  U.  S.,  623  ;  Shivers  vs.  Newton,  45  N.  J.  L.,469 

*  In  re  Jacobs,  98  N.  Y.,  98  ;  see  also  Wynehamer  z/j.  People,  13  N.  Y.,  3;8. 


EXECUTION  OF  STATE  WILL.  349 

sition  to  the  expressed  will  of  the  state.  Therefore 
it  becomes  necessary  in  these  cases,  if  the  will  of  the 
state  shall  be  executed,  that  it  be  executed  by  the 
doing  of  a  definite  thing.  This  definite  thing  may 
often  consist  in  the  payment  of  a  sum  of  money,  or 
it  may  be  absolutely  necessary  that  a  thing  be  done 
which  does  not  consist  in  the  payment  of  a  sum  of 
money. 

First,  Execution  of  the  law  by  the  payment  of  a 
sum  of  money. — A  great  many  of  the  orders  of  the 
administration  and  of  the  laws  which  completely  ex- 
press the  will  of  the  state  may  be  executed  by  insur- 
ing the  payment  of  a  sum  of  money.  Thus  the 
orders  of  the  administration  to  individuals  to  pay 
taxes  and  the  like  will  naturally  be  executed  by  the 
payment  of  a  sum  of  money,  and  be  executed,  also 
naturally,  only  in  this  way.  Further,  it  may  be  possi- 
ble that  the  act  demanded  of  the  individual  may  be 
done  by  the  administration  itself,  whose  expenses  in 
the  doing  of  the  act  may,  like  taxes,  be  made  an  obli- 
gation of  the  person  disobeying  the  administrative 
order.  For  example,  if  a  board  of  health  should  order 
a  landlord  to  make  repairs  which  are  necessary  from 
a  sanitary  point  of  view,  and  he  refuses,  it  is  perfectly 
easy  for  the  administration  to  step  in  and  do  the  work 
itself  and  thus  found  an  obligation,  which  is  binding 
upon  the  individual,  to  repay  the  expenses  which  it  has 
been  obliged  to  incur  in  order  to  do  the  work.^ 

The  methods  adopted  to  insure  the  payment  of 
such  an  obligation  are  usually  the  same  as  those  adop- 
ted to  insure  the  payment  of  judgments  of  courts — 

'  Salem  vs.  The  Eastern  Railroad  Co.,  98  Mass.,  431,  also  reported  in  96 
Am.  Dec,  650. 


350  ADMINISTRATIVE  ACTION. 

that  is,  the  amount  due  is  either  made  a  Hen  upon  the 
real  property  in  relation  to  which  the  obligation 
was  incurred  and  is  to  be  collected  by  the  sale  of  such 
property,  or  it  is  to  be  collected  by  the  sale  of  the 
personal  property  of  the  individual  upon  whom  the 
obligation  is  imposed. 

But  the  will  of  the  state  cannot  always  be  executed 
by  the  payment  of  a  sum  of  money,  any  more  than  it 
can  be  executed  by  the  imposition  of  a  penalty.  In 
many  cases  it  can  be  executed  only  by  the  direct  appli- 
cation of  physical  force  to  either  a  person  or  some 
article. 

Second,  Application  of  physical  force. — It  becomes 
necessary  frequently  in  the  sanitary  administration 
that  certain  articles  which  are  noxious  to  the  public 
health,  safety,  or  morals  shall  be  actually  destroyed. 
The  destruction  of  such  articles  differs  somewhat  from 
the  legal  point  of  view  from  their  forfeiture  as  a 
penalty  for  the  violation  of  the  statute.  Thus  the 
courts  have  said  : 

Where  a  public  nuisance  consists  in  the  location  or  use  of 
tangible  personal  property  so  as  to  interfere  with  or  obstruct  a 
public  right  or  regulation,  the  legislature  may  authorize  its  sum- 
mary abatement  by  executive  agencies  without  resort  to  judicial 
proceedings,  and  any  injury  or  destruction  of  the  property  neces- 
sarily incident  to  the  exercise  of  the  summary  jurisdiction  inter- 
feres with  no  legal  right  of  the  owner,  but  the  legislature  can  go 
no  further;  it  cannot  decree  the  forfeiture  of  property  used  so  as  to 
constitute  a  nuisance  as  apunishmentof  the  wrong,nor  even  to  pre- 
vent a  future  illegal  use  of  the  property,  it  not  being  a  nuisance/^r 
se,  and  appoint  officers  to  execute  its  mandates.  The  plain  reason 
is  that  due  process  of  law  requires  a  hearing  and  trial  before 
punishment  or  before  forfeiture  of  property  can  be  adjudged  for 
the  owner's  misconduct.  Such  legislation  would  be  a  plain 
usurpation  by  the  legislature  of  judicial  powers,  and  under  the 


EXECUTION  OF  STATE  WILL.  351 

guise  of  exercising  the  power  of  summary  abatement  of  nuisances, 
the  legislature  cannot  take  into  its  own  hands  the  enforcement  of 
the  criminal  or  quasi  criminal  law,' 

The  United  States  Supreme  Court,  to  which  this 
case  went  on  appeal,  said  in  its  opinion  ^ : 

The  extent  and  limit  to  what  is  known  as  the  police  power  have 
been  a  fruitful  subject  of  discussion  in  the  appellate  courts  of 
nearly  every  state  in  the  Union.  It  is  universally  conceded  to 
include  everything  essential  to  the  public  safety,health,  and  morals, 
and  to  justify  the  destruction  or  abatement  by  summary  proceed- 
ings of  whatever  may  be  regarded  as  a  public  nuisance.  Under 
this  power  it  has  been  held  that  the  state  may  order  the  destruc- 
tion of  a  house  falling  to  decay  or  otherwise  endangering  the 
lives  of  passers-by,  the  demolition  of  such  as  are  in  the  path  of 
a  conflagration,  the  slaughter  of  diseased  cattle,  the  destruction 
of  decayed  or  unwholesome  food,  the  prohibition  of  wooden 
buildings  in  cities,  .  .  .  the  suppression  of  obscene  publica- 
tions and  houses  of  ill  fame,  the  prohibition  of  gambling  houses 
and  places  where  intoxicating  liquors  are  sold.' 

This  distinction  between  the  forfeiture  of  articles 
decreed  as  a  penalty  for  violation  of  the  law,  which 
can  result  only  from  judicial  proceedings,  and  a  sum- 
mary destruction  by  administrative  officers  of  arti- 
cles which  are  in  and  of  themselves  public  nuisances, 
bring^s  us  to  the  consideration  of  the  different  meth- 
ods  provided  by  law  for  the  execution  of  the  will  of 
the  state,  as  distinguished  from  the  means  adopted 
for  the  execution  of  the  will  of  the  state  which  have 
been  under  consideration. 

//. — Methods  of  execution. 
While  the  means  of  execution  which  have  just  been 
considered  are  quite  numerous  and  varied  in  character, 

'  See  Lawton  vs.  Steele,  119  N.  Y.,  226. 

*  Lawton  vs.  Steele,  152  U.  S.,  133,  on  page  136. 

3  See  also  Buttfield  vs.  Stranahan,  192  U.  S.,  470. 


352  ADMINISTRATIVE  ACTION. 

the   methods   of   executing  the  will  of  the  state,  al 
though  quite  different  in  character,  are  only  two  in 
number :  They  consist,  in  the  first  place,  of  judicial 
process  ;  in  the  second  place,  of  summary  administra- 
tive proceedings. 

I.  Judicial  process. — The  method  of  executing  the 
will  of  the  state  by  judicial  process  is  the  result  of  an 
attempt  to  introduce  into  administrative  matters  the 
controversial  system  of  procedure,  which  has  been  so 
universally  adopted  in  other  civil  and  criminal  pro- 
ceedings. Its  main  characteristic  consists  in  the  fact 
that  the  administration  and  administrative  officers  are 
regarded  as  acting  for  one  party  in  the  controversy, 
and  the  courts  occupy  the  position  of  an  impartial 
arbiter  between  the  administration  on  the  one  side 
and  the  individual  upon  the  other,  who,  it  is  claimed 
by  the  administration,  has  violated  the  constitutionally 
expressed  will  of  the  state.  A  good  example  of  this 
method  of  executing  the  will  of  the  state  is  to  be  found 
in  the  case  of  those  rules  of  administrative  law  which 
have  been  put  into  the  form  of  unconditional  com- 
mands. In  these  cases,  as  it  has  been  pointed  out, 
the  role  of  the  administration  is  to  call  the  attention 
of  the  courts  to  an  alleged  violation  of  the  law. 
When  the  administration  takes  such  action,  it  is  for 
the  courts  to  determine,  as  we  have  seen,  whether  the 
law  is  constitutional,  in  case  the  rule  of  administrative 
law  is  contained  in  a  statute,  or,  where  it  is  contained 
in  an  administrative  ordinance,  whether  the  ordinance 
has  been  passed  as  the  result  of  the  exercise  of  an 
ordinance  power  possessed  by  the  ordinance-making 
authority.  Where  the  ordinance  has  been  passed  as 
the  result  of  the  exercise  of  an  independent  ordinance 


EXECUTION  OF  STATE  WILL.  353 

power,  the  court  is  called  upon  to  consider  not  merely 
the  question  of  the  legality  of  the  ordinance — that  is, 
the  question  of  whether  the  ordinance  is  among  those 
which  it  is  recognized  the  possession  of  the  indepen- 
dent ordinance  power  by  the  authority  permits  it  to 
pass,  but  as  well  the  question  of  the  reasonableness  of 
the  ordinance.  Finally,  where  the  ordinance-making 
authority  has  been  recognized  as  possessing  the 
power  to  impose  penalties  for  the  violation  of  its 
ordinances,  the  court  is  also  called  upon  to  deter- 
mine whether  the  penalties  provided  are  reasonable  ; 
or,  where  the  penalty  has  been  imposed  as  a  result  of 
the  exercise  of  a  power  to  impose  penalties  delegated 
by  the  legislature,  whether  the  penalty  actually  im- 
posed is  within  the  limits  of  the  delegation  which 
has  been   made. 

This  method  of  executing  the  will  of  the  state 
through  judicial  process  is  not,  however,  confined  to 
the  enforcement  of  ordinances  or  general  orders.  It 
is  also  frequently  adopted  in  the  case  of  special  orders 
of  individual  application.  Thus,  it  is  not  unfre- 
quently  provided  in  the  American  law  that,  before 
such  an  order  of  special  and  individual  application 
may  actually  be  enforced,  resort  must  be  had,  by  the 
administrative  authorities  making  the  order,  to  a 
court  of  competent  jurisdiction  for  the  issue  of  its 
warrant,  which  will  be  the  only  justification  under 
the  law  for  the  officer  who  attempts  to  enforce  such 
order.  This  is  very  commonly  provided  in  the  case 
of  the  forfeiture  of  articles  as  a  penalty  for  the  viola- 
tion of  the  law.  Indeed,  as  has  been  shown,  it  has 
been  held  ^   that  administrative  officers  may  not  be 

'  Lawton  vs.  Steele,  119  N.  Y.,  226. 
*3 


354  ADMINISTRATIVE  ACTION. 

authorized  by  the  legislature  to  forfeit  articles  or 
destroy  them  by  summary  proceedings  without  judi- 
cial process,  where  the  forfeiture  is  made  in  order  to 
impose  a  penalty  upon  the  individual  for  the  violation 
of  a  rule  of  administrative  law.  The  doctrine  of  the 
United  States  Supreme  Court  would  seem  to  carry 
this  principle  still  further,  inasmuch  as  it  holds  that 
forfeitures  of  articles  of  substantial  value  can  never 
be  constitutionally  made  except  by  judicial  process.^ 

While  judicial  process  would  seem  to  be  the  only 
method  of  executing  the  will  of  the  state,  which  may 
be  constitutionally  adopted  in  the  case  of  the  forfei- 
ture of  articles  as  a  penalty  for  violation  of  the  law,  it 
would  not  seem  to  be  required  by  the  constitution  in 
all  cases  of  executing  these  orders  of  individual  and 
special  application.  The  law  of  the  United  States, 
however,  very  commonly  makes  provision  for  such  a 
method  of  execution,  as,  for  example,  in  the  case  of 
nuisance-removal  orders  in  the  sanitary  administration 
and  in  the  police  administration,  such  as  the  building 
police  and  police  regarding  the  public  safety.  In- 
deed, it  may  be  said  that,  with  few  exceptions,  in  the 
absence  of  a  statute  providing  for  summary  methods 
of  procedure,  resort  must  be  had  to  the  courts  by  the 
administration  in  order  to  enforce  the  will  of  the  state 
as  expressed  in  the  administrative  law.  Thus,  in  the 
case  of  the  collection  of  taxes,  it  is  held  that  resort 
may  not  be  made  to  summary  methods,  unless  specifi- 
cally authorized  by  law.^ 

An  important  exception  to  the  rule  that  judicial 
process  must,  in  the  absence  of  statutory  provision  to 

•  Lawton  vs.  Steele,  152  U.  S.,  133. 

'  See  Bergen  vs.  Clarkson,  6  N.  J.  L.,  352. 


EXECUTION  OF  ST  A  TE  WILL.  355 

the  contrary,  be  resorted  to  in  order  to  enforce  the 
administrative  law,  is  made  in  the  case  of  nuisances. 
This  exception,  it  will  at  once  be  recognized,  is  a 
pretty  large  one  on  account  of  the  very  wide  meaning 
that  is  given  to  the  term  "  nuisance."  The  considera- 
tion of  this  question  will  be  taken  up  in  the  next 
division  of  the  subject. 

The  last  instance  of  the  method  of  judicial  process 
for  the  enforcement  of  the  rules  of  administrative 
law  to  which  attention  need  be  called,  is  to  be  found 
in  the  case  of  the  attempt  upon  the  part  of  adminis- 
trative officers  to  impose  an  obligation  upon  a  person 
or  a  lien  upon  property  for  work  done  upon  it  by  the 
administration,  where  the  owner  has  refused  to  do 
such  work  when  ordered  to  do  it  by  the  proper  author- 
ities. In  these  cases  it  is  commonly  provided  that  in 
order  to  enforce  the  payment  of  the  obligation  or  to 
enforce  the  lien  upon  the  property,  resort  shall  be  had 
to  the  courts.' 

The  purpose  of  the  adoption  of  the  method  of 
judicial  process  for  executing  the  will  of  the  state 
is  to  subject  the  action  of  administrative  authorities 
to  a  judicial  control.  Its  very  common  adoption 
in  the  English  and  the  American  law  is  undoubt- 
edly due,  in  large  part,  to  the  desire  which  is  notice- 
able in  all  parts  of  the  law  to  prevent,  so  far  as 
possible,  arbitrary  action  upon  the  part  of  the  admin- 
istration. Certainly  the  retention  of  such  a  method 
of  executing  the  rules  of  administrative  law  is  due  to 
this  desire.  At  the  same  time  the  Enoflish  and 
American    law    has    always    recognized    that    it    was 

'  See  Salem  vs.  The  Eastern  Railroad  Co.,  98  Mass.,  431  ;  96  Am.  Dec,  650. 
But  see  Kennedy  vs.  Board  of  Health,  2  Pa.  St.,  366. 


356  ADMINISTRATIVE  ACTION, 

both  necessary  and  proper  in  certain  cases  to  enforce 
the  administrative  law  by  summary  administrative 
'oroceedinors. 

2.  Summary  admtmstratwe  proceedings.  —  The 
principle  of  the  English  law,  that  in  certain  cases 
summary  proceedings  for  the  execution  of  the  admin- 
istrative law  are  proper,  was  adopted  in  this  country 
by  the  courts,  notwithstanding  the  existence  of  con- 
stitutional provisions  which  required  due  process  of 
law  in  order  that  property  might  be  taken  from  in- 
dividuals. The  leading  case  upon  this  point  in  the 
Supreme  Court  of  the  United  States  is  Murray's 
Lessee  vs.  The  Hoboken  Land  and  Improvement 
Company.^  This  was  an  action  of  ejectment  in 
which  both  parties  claimed  title,  the  plaintiffs  under 
the  levy  of  an  execution,  and  the  defendants  under 
a  sale  made  by  the  marshal  of  the  United  States 
for  the  district  of  New  Jersey,  by  virtue  of  what 
was  denominated  a  distress  warrant  issued  by  the 
Solicitor  of  the  Treasury  under  an  act  of  Con- 
gress. This  act  provided,  by  its  first  section,  that 
a  lien  for  the  amount  due  the  government  from  a 
government  officer  should  exist  on  the  lands  of  the 
debtor  from  the  time  of  the  levy  and  record  of 
the  warrant  in  the  office  of  the  district  court  of  the 
United  States  for  the  proper  district,  and  the  date  of 
that  levy  in  this  case  being  prior  to  the  date  of  the 
judgment  upon  which  the  plaintiff's  title  was  based, 
the  question  was  raised  in  the  circuit  court  whether 
the  warrant  of  distress  previously  mentioned,  under 
which  the  defendants  claimed  title,  was  sufficient  under 
the  constitution  of  the  United  States  and  the  law  of 

'  l8  How..  U.  S.,  272. 


EXECUTION  OF  STATE  WILL.  357 

the  land  to  pass  the  title  and  estate  of  the  premises 
in  question  as  against  the  lessor,  the  plaintiff.  In  the 
opinion  of  the  supreme  court,  the  questions  which 
arose  in  this  case  were  whether  under  the  constitution 
of  the  United  States  a  collector  of  the  customs  from 
whom  a  balance  of  account  has  been  found  to  be  due 
by  accounting  officers  of  the  treasury  designated  for 
that  purpose  by  law  could  be  deprived  of  his  property 
in  order  to  enforce  payment  of  that  balance,  without 
the  exercise  of  the  judicial  power  of  the  United  States 
and  yet  by  due  process  of  law  within  the  meaning  of 
those  terms  in  the  constitution ;  and  if  so,  then, 
second,  whether  the  warrant  in  question  was  such  due 
process  of  law.     The  court  said  in  giving  its  opinion  : 

That  the  warrant  now  in  question  is  legal  process  is  not  denied. 
It  was  issued  in  conformity  with  an  act  of  Congress  ;  but  is  it 
due  process  of  law  ?  The  Constitution  contains  no  description 
of  those  processes  which  it  was  intended  to  allow  or  forbid.  It 
does  not  even  declare  what  principles  are  to  be  applied  to  ascer- 
tain whether  it  be  due  process.  It  is  manifest  that  it  was  not 
left  to  the  legislative  power  to  enact  any  process  which  might  be 
devised.  The  article  '  is  a  restraint  on  the  legislative  as  well  as 
on  the  executive  and  judicial  powers  of  the  government  and  can- 
not be  so  construed  as  to  leave  Congress  free  to  make  any  process 
"  due  process  of  law  "  by  its  mere  will. 

Further  along  in  the  opinion  the  court  says : 

We  apprehend  there  has  been  no  period  since  the  establishment 
of  the  English  monarchy  when  there  has  not  been  by  the  law  of 
the  land  a  summary  method  for  the  recovery  of  debts  due  to  the 
Crown,  and  especially  those  due  from  receivers  of  the  revenue. 
It  is  difficult  at  this  day  to  trace  with  precision  all  the  proceedings 
had  for  these  purposes  in  the  earlier  stages  of  the  common  law, 

'  Art.  V.  of  Amendments  :   "  No  person     .     .     .     shall  be  deprived  of  life, 
liberty,  or  property  without  due  process  of  law." 


358  ADMINISTRA  TIVE  ACTION. 

That  they  were  summary  and  severe  and  have  been  used  for  pur- 
poses of  oppression  is  inferable  from  the  fact  that  one  chapter  of 
Magna  Charta  treats  of  their  restraint. 

It  was  therefore  decided  that  the  sale  of  the  property 
under  the  distress  warrant  was  good.  The  case  we 
have  just  been  considering  appHes  specifically  merely 
to  the  power  of  the  United  States  government  to 
provide  such  summary  methods  with  regard  to  the  re- 
ceivers of  public  revenue.  The  principle,  however, 
which  lies  at  the  bottom  of  the  case  was  applied  to 
the  summary  sale  of  property,  even  real  property, 
for  non-payment  of  taxes,^  and  to  the  destruction  of 
property  by  administrative  order,  where  such  property 
had  been  imported  contrary  to  the  mandate  of  an  act 
of  Congress.^' 

The  same  principle  is  applied  in  the  construction 
of  similar  provisions  in  the  state  constitutions.  Thus 
Judge  Cooley  says^: 

A  distress  warrant  is  in  the  nature  of  an  execution,  and  therefore 
seems,  at  first  blush,  a  very  arbitrary  process,  since  it  issues  under 
most  of  our  tax  laws,  without  any  previous  judicial  determination 
of  liability.  But  .  .  .  this  does  not  deprive  a  party  aggrieved 
of  his  remedy  ;  it  only  makes  his  remedy  wait  the  superior  ur- 
gency of  government  necessities.  It  has  been  well  said  of  col- 
lections by  distress  :  "  This  method  of  collecting  taxes  is  as  well 
established  by  custom  and  usage  as  any  principle  of  the  common 
law.  A  similar  practice  prevailed  in  all  the  colonies  from  the 
first  dawn  of  their  existence.  It  has  been  continued  by  all  the 
states  since  their  independence  and  had  existed  in  England  from 
time  immemorial.     Indeed,  it  is  necessary  to  the  existence  of 

"  McMillen  vs.  Anderson,  95  U.  S.,  37,  and  Springer  vs.  United  States,  I03 
U.  S.,  586. 

'•' Buttfield  vs.  Stranahan,  192  U.  S.,  470. 

^  Law  of  Taxation,  second  edition,  page  438. 


EXECUTION  OF  ST  A  TE  WILL.  359 

every  government  and  is  based  upon  the  principle  of  self-preser- 
vation.    This  is  conclusive  of  the  right  to  provide  for  it." ' 

In  the  second  place,  summary  administrative  pro- 
ceedings may  be  resorted  to  in  order  to  abate  public 
nuisances.^ 

'  State  vs.  Allen,  2  McCord,  55  ;  see  also  Commonwealth  vs.  Byrne,  2oGrat- 
tan,  Va.,  165,  where  it  was  held  that  arrest  decreed  by  an  administrative  officer, 
as  provided  by  law  for  non-payment  of  taxes,  was  not  a  deprivation  of  liberty 
without  due  process  of  law,  under  the  constitution  of  Virginia. 

'  The  opinion  of  the  Supreme  Court  of  the  United  States  has  already  been 
referred  to.  This  is  to  be  found  in  the  case  of  Lawton  vs.  Steele,  152  U.  S., 
133.  Here,  however,  the  decision  of  the  court  limits  the  right  of  summary 
abatement,  where  such  summary  abatement  involves  the  destruction  of  prop- 
erty, to  articles  of  small  value.  In  explaining  its  position  on  this  point  the 
court  says:  "It  is  not  easy  to  draw  the  line  between  cases  where  property 
illegally  used  may  be  destroyed  summarily  and  where  judicial  proceedings  are 
necessary  for  its  condemnation.  If  the  property  were  of  great  value  as,  for 
instance,  if  it  were  a  vessel  employed  for  smuggling  or  other  illegal  purposes, 
it  would  be  putting  a  dangerous  power  in  the  hands  of  a  custom  officer  to  per- 
mit him  to  sell  or  destroy  it  as  a  public  nuisance,  and  the  owner  would  have 
good  reason  to  complain  of  such  acts  as  depriving  him  of  his  property  without 
due  process  of  law.  But  where  the  property  is  of  trifling  value  and  its  destruc- 
tion is  necessary  to  effect  the  object  of  a  certain  statute,  we  think  it  is  within 
the  power  of  the  legislature  to  order  its  summary  abatement.  For  instance,  if 
the  legislature  should  prohibit  the  killing  of  fish  by  explosive  shells  and  should 
order  the  cartridges  so  used  to  be  destroyed,  it  would  seem  like  belittling  the 
dignity  of  the  judiciary  to  require  such  destruction  to  be  preceded  by  a  solemn 
condemnation  in  a  court  of  justice.  The  same  remark  might  be  made  of  cards, 
chips,  and  dice  in  a  gambling  room.  The  value  of  the  nets  in  question  was  but 
$15  apiece.  The  cost  of  condemning  one  (and  the  use  of  one  is  as  illegal  as 
the  use  of  a  dozen),  by  judicial  proceedings,  would  largely  exceed  the  value  of 
the  nets,  and  doubtless  the  state  would,  in  many  cases,  be  deterred  from  execut- 
ing the  law  by  the  expense.  They  could  only  be  removed  from  the  water  with 
difficulty  and  were  liable  to  injury  in  the  process  of  removal.  The  object  of 
the  law  is  undoubtedly  a  beneficent  one,  and  the  state  ought  not  to  be  hampered 
in  its  enforcement  by  the  application  of  constitutional  provisions  which  are  in- 
tended for  the  protection  of  substantial  rights  of  property.  It  is  evident  that 
the  efficacy  of  this  statute  would  be  very  seriously  impaired  by  requiring  every 
net  illegally  used  to  be  carefully  taken  from  the  water,  carried  before  a  court 
or  magistrate,  notice  of  the  seizure  to  be  given  by  publication,  and  regular 
judicial  proceedings  to  be  instituted  for  its  condemnation. 

"  There  is  not  a  state  in  the  Union  which  has  not  a  constitutional  provision 
entitling  persons  charged  with  crime  to  a  trial  by  jury,  and  yet  from  time  imme- 
morial the  practice  has  been  to  try  persons  charged  with  petty  offences  before 


36o  ADMINISTRATIVE  ACTION. 

The  rule  is  stated  by  Messrs.  Parker  and  Worth- 
ington,  in  The  Law  of  Public  Health  and  Safety^ 
as  follows  : 

The  right  of  summary  abatement  of  nuisances  existed  at  com- 
mon law.  It  has  never  anywhere  been  abrogated.  There  is 
nothing  ...  in  the  constitution  of  any  state  that  takes 
away  or  impairs  this  remedy.  Indeed,  all  constitutions  presup- 
pose the  existence  of  this  right  ;  their  provisions  for  the  protection 
of  liberty  and  property  from  arbitrary  invasion  were  framed 
with  reference  to  the  right  and  are  to  be  construed  accordingly.' 
The  private  rights  secured  by  constitutional  guaranties  are  such 
as  existed  at  common  law.  They  have  always  been  held  and 
exercised  in  subordination  to  the  general  law  that  the  public 
health,  the  public  morals,  and  the  public  safety  are  of  paramount 
importance,  according  to  the  maxim  ''^  salus  populi  sup7-ema  est 
lex.'''  The  objection,  therefore,  that,  by  this  summary  proceed- 
ing, a  person  may  be  deprived  of  liberty  or  property  without  due 
process  of  law  or  trial  by  jury,  has  no  force  nor  application. 
Formal  legal  proceedings  and  trial  by  jury  are  not  appropriate  to 
and  have  never  been  used  in  such  cases.' 

Public  nuisances  are  classified  as  common-law  and 
statutory  nuisances.  That  is,  the  courts  have  in  the 
course  of  time  determined  that  certain  things  are 
nuisances,  and  the  legislature  has  the  right  also  to 
determine  by  statute    that    certain  other  things  are 

a  police  magistrate,  who  not  only  passes  upon  the  question  of  guilt,  but  metes 
out  the  proper  punishment.  This  has  never  been  treated  as  an  infraction  of 
the  Constitution,  though  technically  a  person  may  in  this  way  be  deprived  of 
his  liberty  without  the  intervention  of  a  jury.  (Callan  vs.  Wilson,  127  U.  S., 
540,  and  the  cases  cited.)  So  the  summary  abatement  of  nuisances  without 
judicial  process  or  proceeding  was  well  known  to  the  common  law  long  prior 
to  the  adoption  of  the  Constitution,  and  it  has  never  been  supposed  that  the 
constitutional  provision  in  question  in  this  case  was  intended  to  interfere  with 
the  established  principles  in  that  regard." 

1  P.  268. 

*  Village  of  Carthage  vs.  Frederick,  122  N.  Y.,  268. 

^See  also  the  cases  already  referred  to,  Salem  vs.  The  Eastern  R.  R.  Co.,  98 
Mass.,  431  ;  96  Am.  Dec,  650  ;  see  also  Fields  vs.  Stokley,  99  Pa.  St.,  306. 


EXECUTION  OF  STATE  WILL.  361 

nuisances,^  subject,  however,  to  the  review  of  the  courts, 
which  may  hold  that  the  action  of  the  legislature  in 
decreeing  a  given  thing  a  nuisance  is  such  a  violation 
of  private  rights  as  to  result  in  depriving  one  of  his 
liberty  or  property  without  due  process  of  law."^ 

Further,  the  legislature  may,  subject  to  the  same 
limitations,  delegate  the  power  to  declare  classes  of 
things  to  be  nuisances  to  local  bodies  and  local  boards 
of  health.^  It  has  also  been  held  that  the  leg-islature 
may  delegate  to  the  council  of  a  municipal  corporation 
the  right  to  pass  ordinances  providing  for  the  com- 
pulsory vaccination  of  all  inhabitants  of  the  city  and 
preventing  children  from  going  to  school  who  have 
not  been  vaccinated.* 

'  Mugler  vs.  Kansas,  123  U.  S.,  623;  Beer  Co.  vs.  Mass.,  97  U.  S.,  25; 
Lawton  vs.  Steele,  119  N.  Y.,  226. 

'In  the  Matter  of  Jacobs,  98  N.  Y.,  98.  In  this  case  the  New  York  Court 
of  Appeals  held  that  the  legislature  might  not  prohibit  the  making  of  cigars  in 
tenement  houses  in  cities  of  over  five  hundred  thousand  inhabitants.  In  the 
course  of  the  opinion  it  said  :  "  Generally  it  is  for  the  legislature  to  determine 
what  laws  and  regulations  are  needed  to  protect  the  public  health  and  secure  the 
public  comfort  and  safety,  and  while  its  measures  are  calculated,  intended,  con- 
venient, and  appropriate  to  accomplish  these  ends,  the  exercise  of  its  discretion 
is  not  subject  to  review  by  the  courts.  But  they  must  have  some  relation  to 
these  ends.  Under  the  mere  guise  of  police  regulations,  personal  rights  and 
private  property  cannot  be  arbitrarily  invaded  and  the  determination  of  the 
legislature  is  not  final  or  conclusive.  If  it  passes  an  act  ostensibly  for  public 
health  and  thereby  destroys  or  takes  away  the  property  of  a  citizen  or  interferes 
with  his  personal  liberty,  then  it  is  for  the  courts  to  scrutinize  the  act  and  see 
whether  it  relates  to  and  is  convenient  and  appropriate  to  promote  the  public 
health.  It  matters  not  that  the  legislature  may  in  the  title  of  the  act  or  in 
its  body  declare  that  it  is  intended  for  the  improvement  of  the  public  health. 
Such  a  declaration  does  not  preclude  the  courts  and  they  must  yet  determine 
the  fact  declared  and  enforce  the  supreme  law." 

^People  vs.  Polinsky,  73  N.  Y.,  65;  Metropolitan  Board  of  Health  vs. 
Heister,  37  N.  Y.,  661. 

■•  Morris  vs.  Columbus,  102  Ga.,  792  ;  Duffield  vs.  School  District,  i6«  Pa. 
St.,  476  ;  see  also  Abeel  vs.  Clark,  84  Cal.,  22b.  It  has,  however,  been  held 
that  a  general  power  to  supervise  the  public  health  and  to  pass  regulations 
whose  purpose  is  to  prevent  the  spread  of  contagious  diseases  will  not  justify 


362  ADMINISTRATIVE  ACTION. 

The  legislature  may  not  only  delegate  to  adminis- 
trative authorities  the  power  to  declare  that  certain 
things  are  nuisances ;  it  may  also,  in  the  same  way, 
provide  for  their  summary  abatement  by  the  proper 
officers  of  the  government,  and  without  notice  or 
hearing.^ 

In  the  case  of  the  abatement  of  a  nuisance  which 
has  not  been  declared  by  some  due  process  of  law  to 
be  a  nuisance,  officers  of  the  government  act  in  its 
abatement  at  their  peril.^  Courts  of  equity  will  often 
issue  an  injunction  to  restrain  attempts  to  abate  what 
is  claimed  to  be  a  nuisance,  and  an  action  will  lie 
against  administrative  officers  for  unlawful  invasion  of 
private  property  for  the  purpose  of  abating  nuisances 
before  proceedings  have  been  had  in  which  the  con- 
ditions complained  of  have  been  determined  to  be  a 
nuisance.^ 

Proof  of  a  nuisance  which  has  been  declared  so  by 
statute  is  naturally  much  easier  than  the  proof  of  a 
common-law  nuisance.  That  which  the  legislature 
has  declared  to  be  a  nuisance  is  a  nuisance,  provided 
the  law  declaring  it  so  is  constitutional,  and  evidence 
that  the  thing  is  not  a  nuisance  is,  subject  to  this 
limitation,  inadmissible.  The  only  question  w^hich 
can  be  considered  is  whether  the  statute  is  constitu- 

the  passage  by  a  state  board  of  health  of  an  order  that  all  children  must  be 
vaccinated  before  they  are  permitted  to  attend  the  public  schools,  where  there 
is  no  immediate  danger  of  an  epidemic  of  smallpox  in  the  particular  locality 
to  which  the  order  may  refer.  See  Potts  vs.  Green,  167  111.,  67.  It  has  even 
been  intimated  that  the  legislature  may  not  under  any  conditions  vest  such  a 
legislative  power  in  a  board  of  health.     See  State  vs.  Burdge,  95  Wis.,  390. 

'  New  York    Department    of    Health  vs.   Rector   of   Trinity    Church,    145 
N.  Y.,  32. 

^  People  ex  rel.  Copcutt  vs.  Board,  140  N.  Y.,  i. 

*  Bristol  Door  and  Lumber  Co.  vs.  City  of  Bristol,  97  Va.,  304  ;    Fields  vi 
Stokley,  99  Pa.  St.,  306  ;  44  Am.  Reps.,  109. 


EXECUTION  OF  STATE  WILL  363 

tional.^  In  the  case  of  the  abatement  of  statutory 
nuisances,  however,  administrative  officers  must  show 
that  they  acted  strictly  within  the  authority  given  by 
the  statute,  and  that  the  character  of  the  thing  acted 
against  was  that  specified  in  the  statute.  The  deter- 
mination of  an  administrative  authority  will  be  no 
protection  if  made  without  notice — and  opportunity 
to  be  heard — to  the  party  charged  with  the  nuisance.* 
In  these  cases  of  summary  destruction  of  property, 
health  officers  and  other  public  officers  are  not,  how- 
ever, regarded  as  liable  for  damages  if  they  have 
acted  in  crood  faith  and  with  reasonable  cause  to 
believe  that  the  thing  proceeded  against  was  actually 
a  nuisance,  even  if,  upon  all  the  evidence,  there  is  a 
doubt  as  to  the  necessity  and  propriety  of  their 
action.^  Notwithstanding  the  presumption  which  is 
made  in  favor  of  the  legality  of  the  action  of  officers 
in  suppressing  nuisances,  the  liability  to  be  held  for 
damages  in  an  action  brought  against  them  subse- 
quently for  trespass  is  regarded  as  a  serious  hindrance 
to  the  efficient  administration  of  the  law  as  to  nui- 
sances. On  that  account  quite  a  number  of  the  laws, 
particularly  with  regard  to  the  preservation  of  the 
public  health,  provide  that  a  board  of  health  or  similar 
authority    shall,    prior    to   the   determination   that   a 

'  Powell  vs.  Pennsylvania,  127  U.  S.,  678  ;  Mugler  vs.  Kansas,  123  U.  S., 
623. 

'  People  vs.  Board,  140  N.  Y.,  i. 

^  "  There  is  a  strong  presumption  favored  by  the  law  that  what  has  been  done 
under  the  sanction  of  official  duty  in  the  discharge  of  public  functions,  in  good 
faith  for  the  public  benefit,  and  without  private  advantage,  has  been  rightly 
done.  Any  doubt  as  to  the  necessity  or  propriety  of  the  official  action,  pro- 
vided it  be  within  the  general  scope  of  the  official  authority,  must  be  resolved 
against  him  who  impeaches  it  and  in  favor  of  the  public  officer."  Parker  and 
Worthington,  op.  cit.,  p.  192,  citing  Rudolphe  vs.  New  Orleans,  11  La.  Ann., 
242. 


364  ADMINISTRATIVE  ACTION. 

thing  is  a  nuisance,  give  the  individual  who,  it  is 
alleged,  is  maintaining  it,  an  opportunity  to  be  heard 
before  the  board  as  to  the  existence  of  the  particular 
conditions  complained  of  as  being  a  nuisance,  in 
which  case  it  is  probably  the  law  that  the  propriety  of 
their  action  cannot  be  questioned  except  in  a  direct 
suit  to  review  it.^ 

In  the  abatement  of  nuisances  public  officers  may 
not  destroy  articles  where  their  destruction  is  not 
necessary  in  order  to  abate  the  nuisance. 

In  many  cases  a  nuisance  can  be  abated  only  by  the  destruc- 
tion of  the  property  in  which  it  consists.  The  cases  of  infected 
cargo  or  clothing  or  of  impure  and  unwholesome  food  are  plainly 
of  this  description.  They  are  nuisances /^-r  se,  and  their  abate- 
ment is  their  destruction.  So,  also,  implements  and  articles  of 
personal  property  capable  only  of  illegal  use  may  be  destroyed 
as  a  part  of  the  process  of  abating  the  nuisance  they  create,  if 
this  be  directed  by  statute.  In  short,  in  every  case,  the  thing 
itself,  or  the  condition  of  things  constituting  or  creating  the 
nuisance,  whatever  the  nature  or  description  of  the  property, 
whether  a  building  or  other  structure,  growing  crops,  deleterious 
articles  of  food  or  drink,  things  infected  with  germs  of  disease, 
or  things  applied  to  illegal  use  and  incapable  of  lawful  use,  may 
be  seized  and  destroyed,  or  so  dealt  with,  according  to  the  nature 
of  the  case,  as  to  do  away  with  their  injurious  effects.' 

Thus,  take  the  case  of  Fields  vs.  Stokley,  already  re- 
ferred to.^  In  this  case  it  was  held  proper  for  the  mayor 
of  a  city  to  abate  a  nuisance  by  the  demolition  of  a 
wooden  house  which  was  dangerous  to  the  safety  of  the 
community.  In  connection  with  this  power  of  summary 
destruction  of  property  should  be  mentioned  the 
common-law  right  of  local  bodies  to  demolish  prop- 

'  Supra,  338. 

'  Parker  and  Worthington,  op.  cit.,  p.   276. 

'99  Pa.  St.,  306,  and  44  Am.  Reps.,  109. 


EXECUTION  OF  STATE  WILL.  365 

erty  in  order  to  prevent  the  spread  of  a  conflagration. 
The  first  reference  to  this  rule  would  seem  to  have 
been  made  by  Lord  Coke  in  "  The  Case  of  the  King's 
Prerogative  in  Salpetre,"^  where  he  says:  "  For  the 
commonwealth  a  man  shall  suffer  damage  ;  as,  for 
saving  a  city  or  town  a  house  shall  be  plucked  down 
if  the  next  be  on  fire  .  .  .  and  a  thing  for  the 
commonwealth  every  man  may  do  without  being 
liable  to  an  action."  This  rule  has  been  adopted  in 
the  law  of  the  United  States,  by  both  the  state  and 
the  national  courts.^ 

"  But  where  the  nuisance  arises  from  unlawful  acts 
or  the  use  of  things  innocent  in  themselves,  the  case 
does  not  call  for  their  destruction  in  order  to  effect  an 
abatement,  but  for  the  discontinuance  of  the  objec- 
tionable method  of  using  them  and  for  the  suppres- 
sion of  the  unlawful  acts.  This  would  be  the  only 
mode  of  abatement  in  such  cases  known  to  the  com- 
mon law,  and  any  other  mode  would  have  no  sanction 
in  that  law."'^  Thus  in  the  case  of  Barclay  vs.  Com- 
monwealth"^ the  nuisance  consisted  in  the  fact  that 
hay,  straw,  and  other  products  were  put  in  a  barn  in 
which  also  horses,  mules,  cattle,  and  other  animals 
were  kept,  and  the  barn  being  near  certain  springs, 
the  offence  consisted  in  the  use  made  of  the  barn  and 
yard  in  close  proximity  to  the  springs.  The  order  of 
the  authorities  was  the  removal  of  the  barn.  The 
court,  in  reversing  the  order,  said  :  "  Where  an  erec- 
tion or  structure   itself    constitutes  the  nuisance,  as 

'  12  Coke,  12. 

2  See  Bowditch  vs.  Boston,  loi  U.  S.,  i6  ;  New  York  vs.  Lord,  18  Wendell 
126. 

•Parker  and  Worthington,  op.cit.,  p.  277. 
4 25  Pa.  St.,  503  ;  64  Am.  Dec,  715. 


zee  ADMINISTRATIVE  ACTION. 

where  it  is  put  up  in  a  public  street,  its  demolition  or 
removal  is  necessary  to  the  abatement  of  the  nuisance  ; 
but  where  the  offence  consists  in  a  wrong-ful  use  of  a 
building,  harmless  in  itself,  the  remedy  is  to  stop  such 
use  and  not  to  tear  down  or  remove  the  building  it- 
self." Thus  ao^ain,  where  the  nuisance  arose  from  a 
pond  of  water,  it  was  held  improper  to  abate  it  by 
filling  up  the  pond.  The  cause  which  rendered  the 
water  impure  could  have  been  removed  without  so 
doing.^ 

'Finley  vs.  Hershey,  41  la.,  389. 


BOOK  VI. 

CONTROL  OVER  THE  ADMINISTRATION 


DIVISION  L— METHODS  OF  CONTROL. 
CHAPTER    L 

NECESSITY    OF    CONTROL. 

The  action  of  the  administration,  whose  forms  and 
methods  have  just  been  described,  is  so  important 
that  it  is  impossible  in  any  country  possessing  consti- 
tutional government  to  allow  every  administrative 
officer  a  perfectly  free  hand  in  the  discharge  of  his 
duties.  The  public  is  so  dependent  upon  the  action 
of  administrative  officers  that  it  is  of  the  utmost  im- 
portance that  their  action  shall  be  efficient  and  har- 
monious. The  officers  of  the  administration  attend  to 
many  things  which  it  is  impossible  for  individuals  to 
attend  to  at  all.  If  they  do  not  perform  their  duties, 
or  perform  them  unwisely  or  inefficiently,  it  will  neces- 
sarily follow  that  these  things  will  not  be  done  at 
all  or  will  be  done  in  such  a  way  that  the  result  of 
administrative  action  will  be  of  little  value.  Some 
means  must  be  provided  also  which  shall  insure  har- 
mony in   administrative  action   where  uniformity  of 

367 


368    CONTROL  OVER  THE  ADMINISTRATION. 

treatment  of  a  given  subject  throughout  the  state  is 
necessary. 

Individuals  further  are  so  at  the  mercy  of  administra- 
tive officers,  who  have  behind  them  the  entire  power  of 
the  state,  that  some  protection  must  be  offered  against 
the  violation  of  private  rights.  The  administration 
is  often  thrown  into  relations  with  individual  citizens 
which  must  necessarily  be  hostile.  It  demands  of 
them  sacrifices  which  they  regard  as  unreasonable  or 
as  not  justified  by  the  law  of  the  land.  Nearly  all 
the  expressions  of  the  will  of  the  state  which  are  to  be 
carried  out  in  their  details  and  executed  by  the  ad- 
ministration cause  a  conflict  at  times  between  the 
conception  by  the  administration  of  what  the  public 
welfare  demands  and  the  conception  by  the  individual 
of  the  sphere  of  private  rights  guaranteed  to  him  by 
the  law.  If  the  officers  of  the  administration  had,  in 
all  such  cases,  uncontrolled  discretion,  it  is  to  be 
feared  that  individual  rights  would  be  violated.  Of 
course  it  is  the  purpose  of  all  administrative  legisla- 
tion to  lessen  as  far  as  possible  the  realm  of  adminis- 
trative discretion  and  to  fix  limits  within  which  the 
administration  must  move.  But  it  is  impossible  to 
do  this  with  such  precision  as  effectively  to  protect 
private  rights.  The  discretion  of  administrative  offi- 
cers cannot  be  taken  away  by  legislation  without 
causing  their  usefulness  seriously  to  be  impaired. 
Large  discretion  must  be  given  to  administrative  offi- 
cers by  the  legislative  authority,  so  large  that  some 
means  of  controlling  the  administration  must  be  de- 
vised if  private  rights  are  to  be  guaranteed  inviolate. 

Finally,  the  action  of  the  administration  should  be 
as  far  as  possible  in  harmony  with  the  state  will  as 


NECESSITY  OF  CONTROL.  369 

expressed  in  the  law,  for  an  unexecuted  law  is,  from 
the  point  of  view  of  actual  conduct,  no  law  at  all. 
The  action  of  the  administration  should  also  conform, 
not  merely  to  the  letter  of  the  law,  but  also  to  its 
spirit,  should  promote  the  public  welfare  as  that  is 
conceived  of  by  the  body  representative  of  the  public. 
But  the  discretion  of  the  administration  relative  to 
concrete  cases  cannot  be  controlled  by  the  statutes 
of  the  legislature  without  seriously  impairing  admin- 
istrative efficiency.  As  before,  some  means  must  be 
devised  of  controlling  the  action  of  the  administra- 
tion, more  concrete  in  character,  more  adaptable  to 
particular  cases. 

For  all  these  reasons,  then,  it  is  desirable,  indeed 
necessary,  that  there  be  formed  methods  of  control 
over  the  action  of  the  administration  by  means  of 
which  it  will  be  possible  to  render  that  action  efficient, 
and  to  force  the  administration  to  consider  private 
rights  to  conform  to  the  state  will  as  that  has  beeri 
expressed  by  the  legislature. 


CHAPTER  II. 

INTERESTS  TO  BE  REGARDED. 

The  formation  of  a  system  of  control  over  the  ad- 
ministration, which  shall  secure  all  that  is  desired,  is 
as  difficult  as  it  is  necessary,  partly  on  account  of 
the  variety  of  the  interests  to  be  regarded,  partly  on 
account  of  the  variety  and  continual  recurrence  of 
the  administrative  acts  to  be  controlled.  Analogies 
from  other  branches  of  the  law  must  be  followed 
with  caution,  because  each  of  these  other  branches 
of  the  law  has,  as  a  rule,  regard  for  only  one  in- 
terest, and  because  the  acts  to  be  controlled  in  the 
other  branches  of  the  law  are  less  varied  in  char- 
acter. Thus  the  private  law  aims  merely  at  the 
maintenance  of  private  rights  and  at  the  observance 
of  the  law  as  laid  down  in  the  books.  It  has  little,  if 
any,  regard  for  public  policy.  Thus  again,  the  crimi- 
nal law  aims  merely  at  the  attainment  of  good  social 
conditions,  while  constitutional  and  international  law 
aim  primarily,  if  not  exclusively,  at  the  efficiency  of 
governmental  organization  and  the  maintenance  of 
state  integrity  and  power.  Constitutional  law,  it  is 
true,  endeavors  to  secure  the  protection  of  private 
rights  in  so  far  as  it  formulates  a  bill  of  such  rights, 
but  the  remedies  for  their  violation,  and  without 
which  they  are  themselves  valueless,  are  to  be  found 

370 


INTERESTS  TO  BE  REGARDED.  371 

very  largely  in  the  control  over  administrative  action 
provided  by  the  administrative  law. 

Administrative  law,  however,  endeavors  to  attain 
all  these  three  ends,  viz.,  state  integrity  and  power, 
governmental  efficiency,  the  maintenance  of  private 
rights,  and  the  attainment  of  good  social  conditions. 
Therefore,  we  cannot  rely,  as  in  these  other  branches 
of  the  law,  on  any  one  kind  of  control.  No  system 
of  private  or  even  public  actions  will  suffice  to  control 
the  application  of  the  administrative  law  or  the  action 
of  the  administration  made  necessary  thereby,  as  it 
undoubtedly  does  suffice  for  the  control  of  the  appli- 
cation of  private  and  criminal  law.  No  system  of 
administrative  centralization  or  legislative  control  will 
suffice,  as  in  the  case  of  international  and  constitu- 
tional law.  On  the  contrary,  a  well-organized  control 
over  the  application  of  the  administrative  law  and  over 
administrative  action  must  make  use  of  all  these 
methods  of  control,  since  the  administrative  law  aims 
at  governmental  efficiency,  individual  liberty,  and  so- 
cial well-being,  as  interpreted  by  the  body  representa- 
tive of  public  opinion.^ 

In  the  formation  of  the  control  over  the  adminis- 
tration, regard  must  be  had,  then,  for  the  interests  to 
be  furthered  by  the  administrative  law.  The  first  of 
these  interests  is  that  of  governmental  efficiency. 
Some  method  of  control  must  be  devised  by  which 
harmony  and  uniformity  of  administrative  action  and 
administrative  efficiency  may  be  secured,  as  many  cases 
may  arise  where  the  neglect  of  officials  will  not  cause  a 
serious  violation  of  private  rights,  but  will  simply  tend 
to  impair  governmental  efficiency.      This  method  of 

•  Cf.  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  bk.  ii.,  p.  331. 


372    CONTROL  OVER  THE  ADMINISTRATION. 

control  should  be  so  framed  that  it  may  be  exercised 
by  the  organs  of  the  government  of  their  own  motion 
and  not  simply  at  the  instance  of  private  persons. 

The  second  interest  to  be  regarded  is  the  preserva- 
tion of  individual  rights,  the  maintenance  in  its 
entirety  of  the  sphere  of  freedom  of  individual  action 
guaranteed  by  the  law  of  the  land.  Some  method  of 
control  must  be  devised  by  which  the  ofFicers  of  the 
government  may  be  prevented  from  encroaching 
upon  this  sphere.  As  this  method  of  control  is 
framed  in  the  interest  of  the  individual,  it  should  be 
possible  for  the  individual  to  set  it  in  motion  by 
appealing  to  impartial  tribunals  from  those  adminis- 
trative acts  which  he  believes  violate  the  ritrhts 
assured  to  him  by  the  law.  Such  impartial  tribunals 
are  found  in  the  courts  which  in  various  ways  may  be 
entrusted  with  the  power  to  prevent  encroachment  by 
the  administration  on  the  domain  of  private  rights. 

The  third  interest  to  be  regarded  by  the  adminis- 
trative law  is  the  social  well-being.  There  must  be 
some  method  of  control  devised  which  will  force  the  ad- 
ministration in  its  action  to  keep  before  it  always  the 
fact  that  it  is  not  a  law  unto  itself ;  that  one  of  the  great 
reasons  of  its  existence  is  the  promotion  of  the  social 
well-being  as  expressed  in  the  law.  Such  a  method 
of  control  should  be  so  organized  as  to  allow  that 
body  which  is  most  thoroughly  representative  of 
public  opinion — that  is,  the  legislature — to  step  in  and 
compel  the  administration  to  obey  the  law.^ 

'  Ibid.,  p.  320  et  seq. 


CHAPTER  III. 

KINDS  OF   CONTROL   AND    PARTICULARLY   THE  ADMINIS- 
TRATIVE   CONTROL. 

There  are  three  distinct  interests  which  are  sought 
to  be  subserved  by  the  administrative  law.  There 
are  therefore  three  methods  of  control,  each  of  which 
aims  primarily  at  the  protection  of  one  of  these 
interests  and  is  to  be  exercised  by  a  special  govern- 
mental authority.  These  three  methods  of  control 
may  be  called  respectively  the  administrative,  the 
judicial,  and  the  parliamentary  or  legislative  control, 
their  names  being  derived  from  the  authority  which 
exercises  them.' 

/. —  The  administrative  control. 

We  have  in  the  first  place  the  administrative  con- 
trol. This  is  exercised  primarily  in  the  interest  of 
governmental  efficiency,  though  it  may  be  used  sub- 
sidiarily in  the  interest  of  the  protection  of  private 
rights  and  the  promotion  of  the  social  well-being. 
Its  main  endeavor  is  to  obtain  harmony  and  uniform- 
ity in  administrative  action,  efficiency  in  the  adminis- 
trative services,  and  uprightness  and  competency  in 
administrative  officers.     It  is  exercised,  as  its  name 

'  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  bk.,  ii.,  p.  320  et  seq. 

373 


374    CONTROL  OVER  THE  ADMINISTRATION. 

implies,  by  the  higher  officers  of  the  administration 
over  the  actions  of  their  subordinates,  and  its  extent 
and  effectiveness  depend  almost  entirely  upon  the 
degree  of  administrative  centralization  present  in  the 
administrative  system.  Where  the  administration  is 
not  somewhat  centralized,  the  administrative  control 
is  naturally  undeveloped.  Where  the  adniinistrative 
control  is  undeveloped,  it  will  be  almost  useless  to 
expect  any  great  efficiency.  Administrative  efficiency 
may,  of  course,  be  sought  in  some  other  way,  but  the 
main  means  of  obtainins:  it  is  through  centralization 
and  the  administrative  control. 

When  analyzed,  this  administrative  control  will  be 
found  to  consist,  first,  of  a  disciplinary  power,  second, 
of  a  power  of  direction,  and  third,  of  a  power  of  super- 
vision, possessed  by  higher  administrative  officers  over 
lower  administrative  officers. 

I.  The  disciplinary  power. — Higher  administra- 
tive officers  have  often  the  right  to  remove  inferior 
officers.  This  power  of  removal,  as  has  been  shown, 
may  be  arbitrary  or  subject  to  conditions.  Where  it 
is  subject  to  conditions,  the  fulfilment  of  which  may 
be  determined  by  the  courts,  as  is  frequently  the  case 
in  the  United  States,  the  disciplinary  power  due  to 
the  existence  of  the  power  of  removal  is  very  largely 
destroyed.  Besides  the  power  of  removal,  higher 
officers  may  have  the  right  to  impose  a  disciplinary 
punishment  less  severe  than  removal,  such  as  fines, 
suspension,  and  loss  of  pay.  Such  a  disciplinary 
power  is  not  commonly  found  in  the  United  States, 
except  in  certain  permanent  services  organized  in  a 
semi-military  fashion,  like  city  police  forces.  It  is 
very  doubtful  whether  such  a  disciplinary  power  is 


KINDS  OF  CONTROL.  375 

possessed  by   administrative  officers  in  this  country 
in  the  absence  of  statutory  provision  to  that  effect. 

2.  Power  of  direction. — The  existence  of  a  power 
of  direction  is  an  indispensable  element  of  a  highly 
centralized  administrative  system.  Reference  to  what 
has  been  said  with  regard  to  the  administrative  or- 
ganization of  the  national  and  state  governments  will 
show  that,  as  a  general  thing,  the  power  of  direction, 
in  the  absence  of  statutory  provision,  is  possessed  only 
by  the  higher  officers  of  the  national  administration. 
The  tendency,  however,  in  the  United  States,  at  the 
present  time,  is  towards  the  extension  of  this  power 
of  direction  in  the  administrative  systems  both  of  the 
states  and  of  the  cities.  The  loosely  organized  system 
which  at  one  time  existed  in  the  United  States,  in 
which  each  officer  was  practically  a  law  unto  himself, 
is  giving  way  to  a  system  in  which  many  officers  are 
regarded  as  subject  to  the  direction  of  superiors. 

3.  Power  of  supervision. — Higher  administrative 
officers  are  often  given  the  power  to  revise  the  action 
of  lower  administrative  officers.  This  power  of  revi- 
sion may  be  exercised  either  on  their  own  motion  or 
on  the  appeal  of  some  individual  who  deems  himself 
aggrieved  by  the  decision  of  the  inferior.  Instances 
of  its  exercise  on  the  motion  of  the  higher  adminis- 
trative officers  are  to  be  found  for  the  most  part  in 
the  national  administration.^  A  common  instance  of 
its  exercise  in  the  case  of  the  state  administration  is 
to  be  found  in  the  power  which  is  often  given  to  either 
state  or  county  boards  of  equalization  to  change  the 

'  See,  e.  g..  United  States  vs.  Cobb,  ii  Fed.,  76,  where  it  was  held  that  the 
secretary  of  the  treasury  had  the  right  of  his  own  motion  to  change  the 
erroneous  decision  of  a  collector  of  the  customs. 


376    CONTROL  OVER  THE  ADMINISTRATION; 

valuation  of  property  for  the  purposes  of  taxation,  fixed 
for  specific  taxing  districts  by  the  assessing  authorities 
of  such  districts.  The  power  of  revising  the  decisions 
of  inferior  officers  on  the  appeal  of  persons  deeming 
themselves  aggrieved  thereby  is  more  commonly 
vested  in  the  higfher  administrative  officers  of  the 
national  government  than  in  similar  officers  in  the 
state  orovernments.^  A  common  instance  of  such  a 
power  in  the  state  administrative  systems  is  to  be  found 
in  the  appellate  jurisdiction  which  is  given  in  the  state 
of  New  York,  as  well  as  in  some  other  states,  to  the 
state  superintendent  of  public  instruction  or  similar 
officer,  through  the  exercise  of  which  he  has  the  right, 
upon  appeal  by  any  one  interested,  to  quash  or  amend 
the  determination  of  any  inferior  educational  authority. 
While  the  administrative  control  in  its  various  forms 
is  peculiarly  adapted  to  secure  administrative  effi- 
ciency, it  is  also  made  use  of  for  the  protection  of 
private  rights.  This  is  particularly  true  of  the  ap- 
peals which  private  Individuals  are  permitted  to  take 
to  higher  administrative  officers  from  the  decisions 
of  lower  administrative  officers,  by  which  they  deem 
themselves  aggrieved. 

//. — The  judicial  control. 

We  have.  In  the  second  place,  the  judicial  control. 
This  is  exercised  by  the  courts  on  the  application  of 
individuals.  Its  primary  purpose  Is  the  protection  of 
individual  rights,  but  it  may  be  made  use  of  subsidi- 
arily in  the  interest  of  administrative  efficiency,  when 

'See,  e.  g..  United  States  vs.  Butterworth,  112  U.  S.,  50,  where  it  was  said 
by  the  Supreme  Court  of  the  United  States  that  a  power  to  hear  appeals  is 
implied  in  the  power  of  direction  given  to  the  heads  of  departments  in  the 
United  States  government. 


KINDS  OF  CONTROL.  377 

it  is  frequently  exercised  on  the  application  of  higher 
administrative  officers. 

///. — Legislative  control. 

We  have,  in  the  third  place,  the  legislative  control. 
This  is  exercised  primarily,  and  it  may  be  said  almost 
exclusivelv,  in  the  interest  of  the  o-eneral  social  wel- 
fare  and  is  exercised,  on  its  own  motion,  by  the  legis- 
lature or  one  of  its  committees. 

Every  constitutional  state  has  formed  a  control  over 
its  administration  out  of  these  three  elements,  but 
the  strength  of  each  of  these  elements  in  different 
states  varies  largely  in  accordance  with  the  relative 
prominence  of  the  end  sought  in  the  formation  of  the 
general  system  of  control,  and  indeed  in  the  whole 
body  of  the  administrative  law.  In  the  United  States, 
for  example,  where  the  end  most  prominently  sought 
is  the  maintenance  in  its  integrity  of  the  sphere  of 
individual  rights,  the  judicial  control  is  very  great, 
while  the  administrative  control  is  comparatively 
slight.  As  the  administrative  control  has  been  suffi- 
ciently considered  in  what  has  already  been  said, 
particularly  with  regard  to  the  organization  of  the 
administration,  we  shall  proceed  at  once  to  the 
discussion  of  the  judicial  control. 


DIVISION  II.— THE  JUDICIAL  CONTROL. 
CHAPTER    I. 

ANALYSIS    OF    THE   JUDICIAL    CONTROL. 

/. —  Use  of  ordinary  judicial  institutions. 

The  judicial  control  may  be  secured  in  many  in- 
stances by  the  use  of  the  ordinary  judicial  machinery 
and  by  the  application  of  the  ordinary  rules  of  law  to 
the  officers  of  the  administration  who  are  to  be  con- 
trolled. Thus  the  government  may  be  regarded  as  a 
juristic  person  when  it  enters  into  contracts  or  vio- 
lates the  rights  of  individuals,  and  as  such  juristic 
person  may  be  treated  as  the  subject  of  private  rather 
than  public  law.  If  the  government  is  so  regarded, 
the  ordinary  means  of  enforcing  contracts  and  re- 
dressing wrongs  which  are  applicable  to  private  per- 
sons may  be  adopted  in  the  case  of  the  government. 
Again,  the  administration  may  be  put  in  the  position 
of  an  ordinary  suitor,  and  may  be  obliged  to  apply  to 
the  courts  before  it  may  enforce  the  law.  Such  is 
the  case  where  the  law  provides  for  what  has  been 
spoken  of  as  judicial  process  in  the  execution  of  the 
state  will.  Finally,  the  officers  of  the  government 
may  be  treated  as  private  persons  without  regard  to 
their  official  capacity,  and  their  acts  done  under  color 

378 


ANALYSIS  OF  THE  JUDICIAL  CONTROL.     379 

of  office  but  not  in  accordance  with  the  law  may  then 
be  treated  like  the  acts  of  private  persons  and  sub- 
jected to  the  control  of  the  ordinary  courts.  If,  with- 
out jurisdiction,  such  officers  have  injured  private 
individuals,  they  may  be  made  responsible  to  such 
individuals  in  damages. 

Analogies  may  also  be  drawn  from  the  criminal 
law.  Many  of  the  rules  of  administrative  law  may  be 
put  into  the  form  of  absolute,  unconditional  com- 
mands to  the  persons  in  the  obedience  of  the  state  to 
do  or  refrain  from  doing  particular  things,  and  the 
violation  of  such  rules  of  law  may  be  punishable 
criminally.  The  application  of  the  penalties  may  be 
entrusted  to  the  ordinary  criminal  courts  which,  be- 
fore taking  action,  will  have  to  decide  as  to  the  crimi- 
nality of  the  act  complained  of  by  the  administration, 
and  will  thus  exercise  a  control  over  the  action  of  the 
administration  when  it  endeavors  to  impose  penalties 
for  the  violation  of  the  law.  Again,  the  ordinary 
misdemeanors  of  officers,  as  well  as  the  violation  by 
them  of  their  administrative  duties,  may  be  made 
punishable  by  the  criminal  courts. 

In  all  of  these  cases  the  law,  in  order  to  provide  a 
judicial  control  over  administrative  action,  makes  use 
of  ordinary  judicial  machinery,  and  applies  to  the  ad- 
ministration and  its  officers  the  ordinary  rules  of  the 
private  and  criminal  law.  For  many  of  the  rules  of 
administrative  law  such  methods  of  control  will  be 
sufficient,  since  the  action  of  the  administration  in 
applying  them  will  be  of  such  a  character  that  it  can 
in  this  way  be  subjected  to  judicial  supervision. 
Thus,  the  wrongful  use  of  governmental  power  by 
officials  to  the  detriment  of  individuals  will,  in  many 


38o    CONTROL  OVER  THE  ADMINISTRATION. 

cases,  be  prevented  by  the  fear  of  incurring  a  liability 
for  damages  or  criminal  punishment.  Especially  will 
this  method  of  judicial  control  be  sufficient  in  the 
case  of  all  rules  of  administrative  law  which  are  put 
into  the  form  of  absolute,  unconditional  commands. 
The  power  which  the  courts  have  to  refuse  to  en- 
force the  penalties  for  the  alleged  violation  of  the 
law  in  case  the  administration  has  endeavored  to  act 
illegally,  will  make  practically  impossible  permanent 
illegal  administrative  action. 

But  in  a  larpfe  class  of  cases  the  action  of  the  ad- 
ministration  is  not  of  such  a  character  as  to  permit  of 
its  beine  brouofht  under  the  control  of  the  courts  by 
the  use  of  ordinary  judicial  institutions  and  by  the 
application  to  the  administration  of  the  ordinary  rules 
of  private  or  criminal  law.  In  others,  the  rule  as  to 
the  conclusiveness  of  administrative  action  in  col- 
lateral proceedings  makes  it  necessary  to  provide 
peculiar  judicial  remedies  against  such  action.  In 
these  cases  it  becomes  necessary,  in  order  that  the 
judicial  control  shall  have  any  value,  that  special  reme- 
dies against  administrative  action  shall  be  provided. 

//. — Special  judicial  remedies. 

It  has  been  shown  that  it  is  impossible  in  all  in- 
stances to  resort  to  the  method  of  putting  the  rules 
of  administrative  law  into  the  form  of  absolute  un- 
conditional commands,  that  in  many  cases  it  is  abso- 
lutely necessary  to  have  recourse  to  conditional, 
relative  commands,  commands  in  which  the  legis- 
lature simply  lays  down  the  general  conditions  of  ad- 
ministrative action  and  leaves  to  the  administration 
the  expression  of  the  will  of  the  state  in  minor  details, 


ANALYSIS  OF  THE  JUDICIAL  CONTROL.     381 

allowing  it,  in  its  discretion,  to  ascertain  the  existence 
of  the  conditions  necessary  for  its  action  in  the  exe- 
cution of  the  law.  Where  the  administration  has,  in 
order  to  execute  these  rules,  to  apply  to  the  courts — • 
that  is,  where  execution  by  judicial  process  is  pro- 
vided, no  special  judicial  control  is,  in  many  cases, 
necessary,  for  the  courts,  as  in  the  case  of  the  imposi- 
tion of  penalties,  may,  when  the  administration  ap 
plies  to  them  for  the  power  to  act,  refuse  to  grant  the. 
power  on  the  ground  that  the  case  is  not  one  of  those 
provided  for  in  the  law.  But  for  all  cases  where 
summary  administrative  proceedings  are  provided,  or 
where  the  action  of  the  administration  is  not  review- 
able collaterally  by  the  courts,  some  method  must  be 
devised  which  will  insure  that  the  administration  will 
act  only  in  the  case  and  only  in  the  way  in  which  the 
law  has  said  that  it  may  act.  Special  judicial  remedies 
must  be  devised  which  will  provide  an  effective  judicial 
control. 

/// — Kinds  of  judicial  control. 

The  judicial  control  thus  proves,  on  analysis,  to  be 
of  a  three-fold  character.  In  the  first  place,  it  is  exer- 
cised by  the  civil  courts,  first,  in  the  power  which 
is  almost  everywhere  given  to  them  to  entertain  suits 
of  a  private  legal  character  against  or  by  the  govern- 
ment or  some  one  of  the  public  corporations  of  the 
government  ;  second,  in  the  power  to  refuse  to  issue 
an  order  or  warrant  applied  for  by  administrative 
officers ;  and,  third  in  the  power  to  entertain  suits 
against  officers  of  the  administration  for  the  dam- 
ages which  they  have  caused  by  their  illegal  acts  or 
the  negligent  performance  of  their  duties. 


382    CONTROL  OVER  THE  ADMINISTRATION. 

In  the  second  place,  the  judicial  control  is  exercised 
by  the  criminal  courts,  first,  in  the  power  which  they 
have  to  pass  upon  the  validity  of  the  acts  of  adminis- 
trative officers  when  the  individual  is  prosecuted  by 
the  administration  for  the  violation  of  these  acts  ; 
and,  second,  in  the  power  which  the  courts  have  to 
punish  officials  for  the  commission  of  ordinary  crimes 
or  for  the  criminal  violation  of  their  official  duties. 

In  the  third  place,  either  there  have  been  formed 
special  courts  or  there  has  been  given  to  the  ordinary 
courts  a  special  jurisdiction  to  hear  appeals  directly 
against  the  acts  of  the  administration.  As  a  result 
of  the  possession  of  this  jurisdiction,  these  courts  may 
even  annul  or  amend  the  acts  of  the  administration 
which  are  complained  of. 


CHAPTER  II. 

CONTROL    OF    THE    CIVIL    COURTS. 

/. — Suits  by  or  against  the  government. 

The  power  of  the  courts  to  entertain  suits  in 
contract  or  tort  to  which  the  government  or  one 
of  its  legal  corporations  is  a  party  depends  upon  the 
extent  to  which  the  government  in  its  central  or  local 
organization  is  recognized  as  possessing  corporate 
rights  and  as  subject  to  corporate  liabilities — in  other 
words,  upon  the  extent  to  which  the  government  is 
recognized  as  a  juristic  person.  As  a  general  rule  of 
law,  it  may  be  said  that  the  government  is  a  jur- 
istic person  so  far  as  concerns  its  power  to  bring 
suit,^  but  it  is  by  no  means  fully  settled  in  this  coun- 
try that  the  government  is  to  be  treated  as  a  juristic 
person  in  case  the  wrong  or  breach  of  contract  is 
committed  by  its  officers.  The  idea  that  the  govern- 
ment cannot  be  sued  in  the  ordinary  courts  seems  to 
have  arisen  from  the  application  of  the  principles  of 
the  Roman  law,^  and  the  adoption  of  the  monarchical 

'  Cf.  Dillon,  Mun.  Cor.,  4th  ed.,  vol.  i.,  p.  55;  see  also  United  States  vs. 
Maurice,  2  Brockenbrough  (U.  S.),  96,  log,  opinion  by  Marshall,  C.  J.  ;  United 
States  vs.  Tingey,  5  Peters,  115  ;  United  States  vs.  Bradley,  10  Peters,  343  ; 
Dugan  vs.  United  States,  3  Wheaton,  172. 

**  Cf.  Mommsen,  Romisches  Staatsrecht,  2d.  ed.,  vol.  i.,  pp.  170,  679  ;  vol.  ii,, 
p.  712. 

383 


384    CONTROL  OVER  THE  ADMINISTRATION. 


principle  that  the  "  sovereign  can  do  no  wrong.'' 
This  rule  seems  not  to  have  been  applied  to  the 
local  incorporations  of  the  government,  which  are 
liable  to  suit  in  the  ordinary  courts,  although  not  to 
the  same  extent  as  private  corporations.  On  account 
of  the  difference  in  the  position  of  the  central  govern- 
ment and  of  the  local  governmental  corporations,  it.  is 
necessary  to  consider  the  control  of  the  courts  over 
the  administration  in  the  case  of  suits  to  which  it  is  a 
party,  from  the  standpoint  of  the  individual  and  from 
that  of  the  government,  and  also  from  the  standpoint 
of  the  central  government  and  from  that  of  the  local 
governmental  corporations. 

I.  Suits  by  the  government  agahist  individuals. — 
So  far  as  the  local  corporations  are  concerned,  it  may 
be  said  that  they  occupy  as  plaintiffs  in  a  suit  against 
individuals  about  the  same  position  that  individuals 
occupy.  In  the  case  of  the  central  government,  how- 
ever, we  find  that  its  position  as  representative  of 
the  sovereign  has  quite  an  appreciable  effect  on  its 
position  as  plaintiff.  In  some  cases  its  position  as 
representative  of  the  sovereign  is  carried  so  far  as  to 
permit  it  to  enforce  claims  against  individuals  with- 
out recourse  to  the  courts  at  all  and  by  means  of 
summary  administrative  proceedings.  This  is  particu- 
larly true  of  claims  which  it  may  have  against  its 
disbursing  officers.^  In  such  cases  the  only  control 
that  the  courts  can  have  over  the  private  legal  re- 
lations of  the  government  is  to  be  found  in  their 
power  of  applying  special  remedies  at  the  instance 
of  some  individual  against  the  enforcement  of  sum- 

o 

'  Murray's  Lessee  vs.  Hoboken  Land  and  Improvement  Company,  18  How., 
272, 


CONTROL  OF  THE  CIVIL  COURTS.  385 

mary  administrative  proceedings.  Further,  even 
where  such  summary  proceedings  have  not  been 
provided  for  the  enforcement  of  government  claims, 
the  government  has  privileges  not  possessed  by  the 
ordinary  suitor,  as,  for  example,  where  it  is  accorded 
the  position  of  a  preferred  creditor,  its  claims  taking 
precedence  of  all  other  claims. 

In  case  the  government  sues  an  individual,  it  is 
generally  admitted  that  the  courts,  although  they 
have  not  the  right  to  entertain  suits  against  the  gov- 
ernment directly,  may  make  allowances  in  their  judg- 
ments for  any  counter-claim  or  set-off  proved  by  the 
defendant  to  the  suit.^  Use  may  not  be  made,  how- 
ever, of  this  power  to  give  a  judgment  against  the 
government.'^ 

2.  Suits  against  local  corporations. — As  a  result  of 
the  desire  to  facilitate  the  conduct  of  the  private 
legal  relations  of  the  government,  many  of  the  import- 
ant localities  into  which  the  state  is  divided  are, 
as  has  been  shown,  regarded  as  corporations,  and 
individuals  are  permitted  to  bring  suits  against  them 
in  contract  and  even  in  tort.  There  is,  however, 
a  distinction  made  between  what  are  known  as 
quasi-vci.ViWxQAy^'A  corporations  and  municipal  corpora- 
tions proper,  in  accordance  with  which  suits  in  tort, 
except  when  permitted  by  express  statute,  may 
not  be  brought  against  the  former,  inasmuch  as  they 
are  to  be  considered  as  aorents  of  the  central  fjov- 
ernment,  and,  as  such,  share  in  the  immunity  pos- 
sessed by  the  sovereign  whom  they  are  regarded  as 

'  United  States  vs.  McDaniel,  7  Peters,  i  ;  see  also  United  States  vs.  Ring- 
gold,  8  Peters,  150,  163. 

*  DeGroot  vs.  United  States,  5  Wall,  419,  431  ;  United  States  vs.  Eckford,  6 
Wall,  484. 

25 


386    CONTROL  OVER  THE  ADMINISTRATION. 

representing.^  Suits  in  tort  may,  however,  be  brought 
against  municipal  corporations  proper,  since  they 
are  beHeved  to  be  formed  for  the  pecuHar  advan- 
tage of  the  inhabitants  of  the  locaHty,  and,  not  rep- 
resenting the  sovereignty  of  the  state,  are  subject 
to  the  rule  of  the  private  law  that  the  superior  is 
responsible  for  the  acts  of  his  agents.~  But  it  is  to 
be  noticed  that  even  municipal  corporations  proper 
are  not  generally  responsible  for  damages  resulting 
from  the  execution  of  what  are  regarded  as  govern- 
mental powers.^ 

Further,  while  the  local  corporations  may  thus  be 
sued  and  judgment  obtained  against  them  in  the 
usual  way,  it  is  to  be  noticed  that  such  judgments  are 
not  commonly  collectible  in  the  usual  way — that  is, 
by  sale  on  execution  of  the  property  of  such  corpora- 
tions. The  usual  means  of  enforcing  such  a  judg- 
ment in  the  United  States  is  to  apply  to  the  courts 
for  the  exercise  of  their  power  to  force  the  local  au- 
thority to  insert  the  necessary  appropriation  in  its 
budget  and  to  provide  by  taxation  or  otherwise  for 
the  payment  of  the  judgment.  While  this  is  the 
usual  method  of  enforcing  a  judgment  against  a 
municipal  corporation,  it  is  still  true  that  the  common 
law,  where  no  change  has  been  made  by  statute,  per- 
mits the  sale  on  execution  of  all  purely  private  prop- 
erty of  such  corporations  which  is  not  devoted  to  a 
public  service.* 

3.     Suits  against   the  central  government :  Firsts 

'  Moreyz/j.  Town  of  Newfane,  8  Barb.  (N.  Y.),  645  ;  see  also  Hill  vs.  Boston, 
122  Mass.,  344. 

'Bailey  vs.  Mayor,  etc.,  3  Hill  (N.  Y.),  531;  see  also  Dillon,  Mun.  Cor,, 
4th  ed.,  vol.  i.,  p.  45.  ^  Ibid.  *  Dillon,  op.  cit.,  vol.  ii..  §  576. 


CONTROL  OF  THE  CIVIL  COURTS.  387 

The  national  government. — The  English  law,  basing 
itself  upon  the  principles  that  the  sovereign  can  do 
no  wrong  and  that  when  the  government  enters  into 
private  legal  relations  the  sovereign  acts  through  it, 
denies  in  principle  to  the  individual  the  right  to  sue 
the  central  government  except  with  its  consent  or  in 
the  special  way  which  the  government  may  have  indi- 
cated. To  prevent  this  privilege  of  the  government 
from  resulting  in  gross  injustice,  the  individual  was 
from  time  immemorial  allowed  respectfully  to  petition 
the  Crown,  which  was  historically  the  sovereign,  that 
right  be  done  him.  Such  a  petition  was  called  the 
petition  of  right. 

In  this  country,  the  maxim  that  the  sovereign  can 
do  no  wrong  is  not  a  part  of  the  law.^  At  the  same 
time  there  is  by  the  common  law  no  remedy  in  case 
an  individual  desires  positively  to  sue  the  govern- 
ment. The  petition  of  right  is  regarded  as  inapplica- 
ble, inasmuch  as  the  executive  in  this  country  is  not 
regarded  as  the  sovereign,  and  inasmuch  as  it  does  not 
have  control  of  the  purse-strings.  The  original  prac- 
tice, therefore,  was  for  the  individual  having  a  claim 
against  the  government  to  petition  the  legislature  for 
a  special  appropriation  to  pay  his  claim,  and  in  case 
this  petition  was  well  founded,  it  was  the  custom  of 
the  legislature  to  pass  a  special  appropriation  bill 
which  was  regarded  as  mandatory  upon  the  disburs- 
ing officers  of  the  government.^ 

In  the    national    government,    on    account  of  the 


'  Langford  vs.  United  States,  loi  U.  S.,  341.  This  is  seen  from  the  fact 
that  in  a  suit  brought  by  the  government  against  an  individual,  he  is  permitted, 
as  has  been  shown,  to  interpose  a  counter-claim. 

*  Kendall  vs.  The  United  States,  12  Peters,  524, 


388   'CONTROL  OVER  THE  ADMINISTRATION. 

magnitude  of  its  operations  and  the  great  number  of 
special  claims  which  were  presented  to  Congress  for 
settlement,  this  method  proved  to  be  an  inconvenient 
one,  and  in  1855  an  act  was  passed^  providing  a 
court  for  the  investigation  of  claims  against  the 
United  States  government  based  upon  a  law  or  a 
contract.  At  first  the  decisions  of  this  court  had  no 
legal  effect  whatever,  since  they  were  drawn  up  in  the 
form  of  a  bill  which  was  afterwards  to  be  laid  before 
Congress  for  its  approval.  The  act  was  afterwards 
amended  so  as  to  make  the  Court  of  Claims  a  real 
court  whose  judgments  are  of  themselves  mandatory 
upon  the  secretary  of  the  treasury,  and  binding 
upon  the  individual  suitor,  and  are  to  be  paid  out  of 
any  general  appropriation  for  the  payment  of  private 
claims.  Appeal  may  be  taken  from  the  Court  of 
Claims  to  the  United  States  Supreme  Court.^  The 
act  organizing  the  Court  of  Claims  has  not,  however, 
vested  it  with  jurisdiction  over  all  suits  against  the 
government.  Thus,  for  example,  the  Court  of  Claims 
has  no  equity  jurisdiction  and  therefore  may  not  de- 
cree specific  performance  of  a  contract  or  the  resti- 
tution of  property,^  and  has  no  jurisdiction  over 
claims  for  torts  committed  by  the  government.*  In 
order,  however,  to  afford  greater  justice  to  claimants 
against  the  government,  the  Court  of  Claims  and  the 
United  States  Supreme  Court,  when  cases  have  gone 
to  it  on  appeal,  have  given  quite  a  wide  extension  to 
the  doctrine   of  quasi  or  implied  contracts,  and  the 

'  10  Statutes  at  Large,  p.  6i2.  *  12  Ibid.,  p.  766. 

2  Bonner  vs.  The  United  States,  9  Wallace,  156;  United  States  vs.  Jones, 
131  U.  S.,   I. 

*  Gibbons  vs.  United  States,  8  Wallace,  269;  Langford  z^j.  United  States, 
lOl  U.  S.,  341. 


CONTROL  OF  THE  CIVIL  COURTS.  389 

Court  of  Claims  will  take  jurisdiction  of  suits  which 
closely  resemble  suits  in  the  nature  of  torts.  Thus  it 
has  been  held  that  if  the  government  uses  land  to 
which  it  asserts  no  title,  there  is  an  implied  contract 
to  pay  for  it.^ 

The  success  of  the  Court  of  Claims  was  such  that 
Congress  in  1887  passed  an  act  known  as  the  Tucker 
Act,  which  extended  the  jurisdiction  of  the  court  to 
all  claims  founded  upon  the  constitution  of  the 
United  States  or  any  law  of  Congress  except  for  pen- 
sions, or  upon  any  contract,  express  or  implied,  with 
the  government  of  the  United  States,  or  for  damages 
liquidated  or  unliquidated  in  cases  not  sounding  in 
tort,  in  respect  of  which  claims  the  party  would  be 
entitled  to  redress  against  the  United  States,  either 
in  a  court  of  law.  equity,  or  admiralty,  if  the  United 
States  were  suable.'^  The  Tucker  Act,  in  addition  to 
extending  the  jurisdiction  of  the  Court  of  Claims, 
gave  the  circuit  and  district  courts  concurrent  juris- 
diction of  all  claims  against  the  government  of  the 
character  enumerated,  under  a  certain  amount. 

In  the  cases  both  of  the  Court  of  Claims  and 
of  the  circuit  and  district  courts,  when  actincr  as 
courts  of  claims,  the  procedure  is  somewhat  different 
from  that  which  is  followed  in  the  ordinary  courts 
when  hearing  cases  between  individuals.  In  the  first 
place,  the  judges  decide  questions  both  of  law  and  of 
fact.  There  is  no  jury.  In  the  second  place,  the  pro- 
cedure before  the  Court  of  Claims  is  largely  in  writing, 


'  See  United  States  vs.  Great  Falls  Mfg.  Co..  112  U.  S.,  645.  The  same  rule 
is  applied  to  patented  inventions.     United  States  vs.  Palmer,  128  U.  S.,  262. 

^  As  to  the  extent  of  the  jurisdiction  of  the  court  under  the  Tucker  Act,  see 
Dooley  vs.  United  States,  182  U.  S. ,  222. 


390    CONTROL  OVER  THE  ADMINISTRATION. 

in  order  that  the  suitors  in  the  court  may  not  be  obliged 
to  appear  in  person  or  to  send  counsel  a  great  distance, 
for  the  Court  of  Claims  sits  only  at  Washington.  In 
the  third  place,  the  government  is  given  certain  privi- 
leges. Thus,  it  has  always  the  right  to  appeal  to  the 
Supreme  Court,  the  individual  only  in  special  cases. 
Thus  again,  any  attempt  fraudulently  and  wilfully  to 
demand  excessive  damages  from  the  government  will 
result  in  voiding  the  whole  claim.  The  same  is  true 
in  case  false  evidence  is  adduced. 

In  addition  to  the  Court  of  Claims  there  are  one 
or  two  special  courts  for  special  classes  of  claims. 
Thus  there  is  a  court  for  private  land  claims. 

In  many  cases  special  acts  are  passed  which  author- 
ize the  Court  of  Claims  to  hear  cases  which  other- 
wise would  not  be  within  its  jurisdiction.  Such  are 
the  claims  arising  from  collisions  due  to  alleged 
negligence  in  the  navigation  of  public  vessels.^ 

Second,  The  state  governments. — There  is  no  gen- 
eral rule  with  regard  to  suits  against  the  state  govern- 
ments. By  the  original  constitution  of  the  United 
States,  a  state  might  be  sued  by  a  citizen  of  any  other 
state  or  by  a  foreign  nation  in  the  Supreme  Court  of 
the  United  States.  This  liability  to  suit,  however, 
was  removed  by  the  eleventh  amendment,  which  has 
been  so  interpreted  by  the  Supreme  Court  as  to  make 
it  well-nigh  impossible  to  make  a  state  a  defendant  in 
a  suit  in  which  an  individual  is  the  real  plaintiff."^  It 
has  been  held,  however,  that  a  state  may  be  sued  in 


'  See    14   Court  of   Claims,  435;    25  Statutes  at  Large,  1334;    24  Court  of 
Claims,  372. 

^  See  New  Hampshire  vs.  Louisiana,  and  New  York  vs.  Louisiana,  108  U.  S., 
76;  Hans  vs.  Louisiana,  134  U.  S.,  i. 


CONTROL  OF  THE  CIVIL  COURTS.  391 

the  United  States  Supreme  Court  by  another  state.^ 
Further,  the  fact  that  a  state  owns  some  or  all  of  the 
shares  of  stock  of  a  corporation  will  not  prevent  the 
United  States  Courts  from  taking  jurisdiction  of 
suits  against  such  corporation  brought  by  individual 
plaintiffs.^ 

Some  of  the  state  constitutions  expressly  provide 
for  the  bringing  of  suits  in  the  ordinary  state  courts 
against  the  state.  Others  expressly  forbid  that  the 
state  shall  ever  be  made  a  defendant  in  any  suit  at 
law  or  in  equity.  In  the  majority,  however,  the  old 
common-law  rule  prevails,  that  no  suit  can  be  brought 
against  the  state  without  its  consent.  In  one  state, 
namely,  New  York,  the  state  has  consented  to  being 
sued  in  a  court  of  claims  similar  to  that  to  be  found 
in  the  United  States  government.  Other  states 
have,  by  general  law,  granted  the  right  to  the  indi- 
vidual to  sue  them  in  the  ordinary  courts.  Among 
them  may  be  mentioned  Virginia,  of  which  it  is  said, 
•*  it  has  ever  been  the  cherished  policy  of  Virginia  to 
allow  to  her  citizens  and  others  the  largest  liberty  of 
suit  against  herself,  and  there  has  never  been  a 
moment  since  October,  i  778  (but  two  years  and  three 
months  after  she  became  an  independent  state),  that 
all  persons  have  not  enjoyed  this  right  by  express 
statute."^  Another  state,  California,  by  act  of  Feb- 
ruary 28,  1893,  provides  for  bringing  suit  for  all 
"  claims  on  contract  or  for  negligence  against  the 
state."     The  provision  of  the    statute   of  California 


'  South  Dakota  vs.  North  Carolina,  192  U.  S.,  286. 

*  U.  S.  Bank  vs.   Planters'  Bank,  9  Wheaton,  904;  Bank  of  Kentucky  vs, 
Wister,  2  Peters,  318. 

*  Higginbotham's  Executrix  vs.  Commonwealth,  25  Grattan,  637. 


392    CONTROL  OVER  THE  ADMINISTRATION. 

for  suits  against  the  state  for  negligence  is  almost 
unique,  the  usual  rule  being  that  the  jurisdiction 
of  either  the  general  courts  or  the  special  courts 
which  may  be  established  is  limited  to  claims  arising 
upon  contracts.^  In  New  York,  also,  it  is  to  be 
noted  that  the  jurisdiction  of  the  Court  of  Claims 
extends  to  claims  arising  out  of  negligence  in  the 
management  of  the  canals  operated  by  the  state.'"^ 

4.  Suits  indirectly  against  the  government. — Finally, 
it  is  to  be  noticed  in  the  cases  both  of  the  United 
States  national  government  and  the  state  govern- 
ments, that  suits  which  are  practically  against  the 
government  are  permitted  where  they  are  brought 
nominally  against  officers  of  the  government.  The 
theory,  of  course,  is  that  in  these  cases  the  courts 
really  enforce  the  will  of  the  state  against  the  unlaw- 
ful refusal  of  its  agents  to  perform  their  duties,  but 
as  a  matter  of  fact  the  jurisdiction  is  sometimes 
admitted,  even  where  the  state  really  asserts  adverse 
rights.  In  certain  instances,  the  courts  have  seen 
that  the  real  party  in  interest  was  the  state,  and  in 
their  more  recent  decisions  they  hold  that  they  will 
look  behind  the  parties  of  record  and  hold  the  suit 
to  be  against  the  state  where  the  property  and  the 
interests  of  the  state  are  directly  involved.  On  the 
other  hand,  they  hold  quite  universally  to  the  rule 
that  they  will  sustain  the  action  where  a  distinct  and 
specific  right  of  person  or  property  is  asserted  and 
protection  or  relief  is  sought  against  the  threatened 
or  consummated  invasion  by  the  act  of  officers  assert- 

'  See  The  Murdock  Parlor  Grate  Co.  vs.  Commonwealth,  152  Mass.,  28. 
*See  Sipple  vs.   The  State,  99  N.  Y.,  284;   Splittorf   vs.    The   State,  108 
N.  Y.,  205. 


CONTROL  OF  THE  CIVIL  COURTS.  393 

ing  an  authority  which  is  held  to  be  void.  "  The  dis- 
tinction," it  is  said,  "  has  been  carried  to  such  a  point 
of  refinement  that  in  some  cases  it  seems  to  resolve 
itself  into  the  question  whether  the  relief  sought  is 
affirmative,  when  it  will  be  refused,  or  negative,  when 
it  will  be  granted."  ^ 

One  of  the  most  interesting  cases  on  this  point  is 
that  of  United  States  vs.  Lee.^ 

This  was  an  action  in  ejectment  brought  against  officers  hold- 
ing on  behalf  of  the  government  possession  of  land  to  which  the 
United  States  claimed  title.  The  United  States  appeared  for 
the  sole  purpose  of  objecting  to  the  jurisdiction  of  the  Court  on  the 
ground  that  the  real  and  proper  party  defendant  was  the  govern- 
ment :  The  Court,  however,  by  a  bare  majority,  held  the  action 
maintainable  and  gave  judgment  in  favor  of  the  plaintiff.  The 
decision  really  amounted  to  an  evasion  of  a  substantial  principle 
of  law  by  a  technical  expedient.  For  the  prerogative  of  the 
sovereign  power  not  to  be  sued  in  its  own  courts  in  an  action  of 
ejectment  becomes  worthless  if  its  instruments  of  action,  by 
which  alone  it  can  accomplish  its  purposes,  can  be  substituted  in 
its  place.' 

Notwithstanding  these  considerations,  in  order  to 
do  justice,  the  court  maintained  the  action  and  issued 
the  writ  of  ejectment.  The  same  principle  has  been 
applied  to  an  action  brought  in  the  United  States 
courts  against  state  officers.^ 

Finally,  by  special  statute  the  government  is  made 
liable  for  judgments  obtained  against  its  officers  in 
special  cases.  This  is  true,  for  example,  of  the  col- 
lectors of  internal  revenue,  where  they  demand  more 

'  Freund,  "  Private  Claims  against  the  State,"  P.  S.  Q.,  viii.,  p.  636,  citing 
Board  of  Liquidation  vs.  McComb,  92  U.  S.,  531,  and  Louisiana  vs.  Jumel, 
107  U.  S.,  711.  '  106  U.  S.,  196. 

» Freund,  p.  638.  *Tindal  vs.  Wesley,  167  U.  S.,  204. 


394    CONTROL  OVER  THE  ADMINISTRATION. 

than  the  taxes  required  bylaw.  The  statutes^  per- 
mit the  individual  to  sue  the  collector,  and  the  gov- 
ernment pays  the  judgment.  This  is  in  reality 
recognizing  the  liability  of  the  government  to  be 
haled  before  the  courts  at  the  instance  of  a  private 
individual.^ 

//. — Execution  of  the  law  by  judicial  process. 

Attention  has  already  been  called  to  the  principle 
that  in  the  absence  of  some  special  statutory  provision 
the  officers  of  the  administration  are  not  in  some  cases 
authorized  to  proceed  directly  to  the  enforcement  of 
the  law.^  In  so  far  as  summary  administrative  pro- 
ceedings in  the  execution  of  the  law  are  not  authorized, 
the  very  methods  provided  for  the  enforcement  of  the 
will  of  the  state  make  provision  for  a  judicial  control 
over  administrative  action,  inasmuch  as  the  courts  to 
which  application  for  an  order  or  warrant  is  made  by 
the  administration  have  the  right,  before  issuing  such 
order  or  warrant,  to  determine  as  to  the  legality  of  the 
action  which  the  administration  has  taken. 

But  the  courts  have,  in  their  decisions,  very  seriously 
limited  the  powers  of  control  over  administrative  ac- 
tion which  this  method  of  enforcing-  the  law  accords 
to  them.  They  have,  in  the  first  place,  very  generally 
held  to  the  rule  that  their  control  is,  ordinarily,  limited 
to  the  determination  of  questions  of  jurisdiction  and 
regularity    of  action    upon    the    part    of  administra- 

1  U.  S.  Rev.  Stats.,  Sec.  3220. 

*  On  the  general  subject,  see  King,  "  Claims  against  Governments,"  American 
Law  Register  and  Review,  vol.  32,  p.  997  ;  Freund,  "  Private  Claims  against 
the  State,"  P.  S.  Q.,  viii.,  p.  625. 

^  For  a  fuller  statement  of  these  rules  of  law,  see  supra,  p.  352. 


CONTROL  OF  THE  CIVIL  COURTS.  395 

tive  officers.  They  will  not,  as  a  general  rule,  make 
use  of  this  power  of  control  to  interfere  in  any  way 
with  the  discretion  which  may  have  been  accorded  to 
administrative  officers.  For  example,  where  adminis- 
trative officers  have  assessed  property  for  the  purpose 
of  taxation  and  the  method  of  collecting  such  taxes  is 
that  by  suit  brought  before  the  courts,  the  courts  on 
such  suit  will  give  judgment  against  the  administration 
only  because  administrative  officers  have  exceeded 
their  jurisdiction  in  attempting,  for  example,  to  levy  a 
tax  not  authorized  by  statute,  or  have,  in  the  assess* 
ment  proceedings  carried  on  for  the  purpose  of  deter- 
mining the  amount  of  the  tax,  applied  rules  which  are 
clearly  contrary  to  law.^  The  courts  will  not,  on 
such  suit,  review  the  determination  of  the  assessors 
as  to  the  value  of  the  property,  where  such  assessors 
have  had  jurisdiction  and  have  applied  right  legal 
principles. 

Furthermore,  in  a  number  of  instances  the  courts 
have  held  that,  where  this  method  of  execution  of  the 
law  by  judicial  process  has  been  adopted,  they  are 
precluded  from  reviewing  the  action  of  the  adminis- 
tration except  as  to  jurisdictional  matters,  if  the  law 
has  provided  a  method  of  direct  review  of  such  action. 
The  rule  is  generally  said  to  be  that  officers  are  pre- 
sumed to  have  acted  in  accordance  with  the  law,  and 
that  therefore  their  action  may  not  be  impeached 
in  any  way  in  a  collateral  proceeding  to  which  the 
officers  arrivinp;  at  the  determination  souofht  to  be 
reviewed  are  not  parties,  or  where,  if  such  officers  are 
parties,  the  individual  complaining  of  their  actions  has 

'  Houston  Co.  Corns,  vs.  Jessup,  22  Minn.,  552  ;  McCrillis  vs.  Mansfield,  64 
Me.,  198. 


396    CONTROL  OVER  THE  ADMINISTRATION. 

not  at  the  time  such  action  was  taken  availed  of  the 
remedy  of  direct  review  of  such  action.^ 

///. — Suits  for  damages  against  officers. 

Attention  has  already  been  called  to  the  fact  that 
the  English  law  never  regarded  officers  as  possessing 
any  particular  immunities  resulting  from  their  position 
as  officers.  It  has  been  shown  that  assaults  com- 
mitted against  them  are  punishable  only  in  the  same 
way  as  assaults  committed  against  ordinary  individu- 
als, except  in  the  case  of  resistance  to  officers  in 
the  performance  of  their  duties.  This  position,  which 
English  officers  have  always  occupied,  has  been  due 
in  part  to  the  influence  upon  the  English  law  of  the 
old  Teutonic  law.  That  law  resfarded  officers  as  sub- 
ject  to  the  law  of  the  land  in  the  same  way  as  ordinary 
individuals,  and  as  liable  for  the  damages  resulting 
from  actions  done  without  authority,  whenever  such 
actions  caused  damage  to  individuals.^ 

The  character  of  the  administrative  system  which 
England  developed,  was  also  in  part  responsible  for 
the  position  accorded  to  officers.  This  was  a  system 
which  has  been  called  a  self-government  system. 
Officers  did  not  form  a  privileged  class,  but  were 
chosen  from  the  ordinary  members  of  the  community, 
and,  after  serving  their  terms,  relapsed  into  the  ranks 
of  society.  During  the  performance  of  their  duties, 
they  did  not,  as  a  general  thing,  receive  large  salaries, 
certainly  not  salaries  large  enough  to  enable  them  to 
live  without  other  occupation  or  means  of  livelihood. 

'  McMahon  vs.  Palmer,  102    N.  Y.,   176  ;    cf.   Swift  vs.  Poughkeepsie,  37 
N.  v.,  511. 

"^  Loening,  Deutsches  Verwaltungsrecht,  771-784. 


CONTROL  OF  THE  CIVIL  COURTS.  397 

The  result  was  that  the  EngHsh  officer  was  merely 
an  ordinary  person  who  happened,  as  the  result  of 
circumstances,  to  be  discharging  duties  of  a  public 
character. 

The  same  rules  of  law  were  therefore  applied  to 
officers  which  were  applied  to  ordinary  citizens.  Offi- 
cers were  not  in  theory,  subject  to  certain  specific  ex- 
ceptions which  will  be  hereafter  mentioned,  exempted 
from  liability  for  non-observance  of  the  law  on  ac- 
count of  their  official  position.  If  during  the  period 
of  their  discharge  of  public  functions  they  committed 
an  act  not  justified  by  the  law,  such  act  was  regarded 
as  coram  non  judice — that  is,  as  an  act  of  a  purely 
private  and  personal  character  for  which,  like  any 
citizen,  they  could  be  held  responsible  before  the  or- 
dinary courts.  The  important  question  to  be  decided 
by  the  courts  whenever  the  acts  of  an  officer  came 
up  before  them  was  therefore  the  question  of  juris- 
diction. Did  the  law  give  the  officer  the  power  to 
perform  the  act,  the  result  of  whose  performance  was 
damaofe  to  an  individual  ? 

The  significance  of  this  relation  of  officers  to  the 
courts  was  to  be  found  in  the  fact  that  the  courts  had 
the  power  to  determine  in  each  specific  case  whether 
an  officer  had  jurisdiction  to  do  a  given  act.  Any  act 
of  an  officer  might  give  rise  to  a  complaint  which  the 
courts  would  have  to  decide.  In  deciding  the  com- 
plaints coming  before  them,  the  courts  had  the  power 
to  delimit  the  sphere  of  administrative  competence 
in  all  of  its  details.  What  the  actual  extent  of  the 
control  which  the  courts  miofht  exercise  was  to  be, 
would  depend  entirely  upon  the  attitude  of  the  courts. 
They  might  pass  upon  every  act  of  every  officer,  or 


398    CONTROL  OVER  THE  ADMINISTRATION. 

they  might  Hmit  their  power  in  the  interest  of  the 
pubHc,  and  might  thus  leave  something  to  adminis- 
trative discretion  which  they  would  not  attempt  to 
control. 

This  is  actually  what  the  courts  of  England  and 
the  United  States  have  done.  In  both  countries  they 
have  made  most  important  exceptions  to  the  rule  that 
the  jurisdiction  of  all  officers  of  the  government  is 
subject  to  delimitation  by  the  courts,  and  that 
through  the  exercise  of  this  power  the  courts  may 
hold  officers  of  the  government  responsible  for  dam- 
ages resulting  from  acts  which  in  the  opinion  of  the 
courts  were  in  excess  of  the  jurisdiction  of  such  offi- 
cers.    These  exceptions  are  as  follows  : 

I.  Chief  executive  not  liable  in  damages. — In  ac- 
cordance with  the  maxim  that  "  the  Crown  can  do  no 
wrong,"  the  English  Crown  was  exempted  from  all 
liability  for  tortious  acts.  Indeed,  in  the  theory  of 
the  law  it  could  not  commit  a  tort.  This  rule  of  law 
has  been  applied  by  the  United  States  courts  to  the 
President.      It  is  said  that 

no  case  has  as  yet  arisen  in  which  it  has  been  attempted  to  hold 
the  President  of  the  United  States  amenable  to  a  private  action 
for  his  official  misconduct;  and  certainly  so  far  as  the  perform- 
ance of  the  great  political  powers  which  are  conferred  upon  him 
is  concerned,  no  such  action  could  be  maintained.  .  .  .  The 
same  immunity  extends  also  to  the  governors  of  the  states.  "  The 
Governor  of  the  State,"  says  Judge  Cooley,  ..."  could  not 
be  made  responsible  to  private  parties  without  subordinating  the 
Executive  Department  to  the  Judicial  Department,  and  this 
would  be  inconsistent  with  the  theory  of  Republican  institutions: 
each  Department  within  its  province  is  and  must  be  indepen- 
dent." ' 

'  Cooley  On  Torts ^  ist  ed.,  p.  377. 


CONTROL  OF  THE  CIVIL  COURTS.  399 

^  .  .  No  case  has  been  discovered  in  which  an  action  for 
damages  has  been  sought  to  be  maintained  against  the  Governor 
for  his  neglect  or  refusal  to  perform' even  a  ministerial  act.' 

2.  Heads  of  executive  departments  not  liable. — The 
heads  of  executive  departments  in  both  England  and 
the  United  States  are  practically  guaranteed  im- 
munity from  suits  for  damages  at  the  hands  of  private 
individuals.      Mr.  Todd  says  :  ^ 

It  may  be  stated  as  a  general  principle  that  in  assuming  on 
behalf  of  the  Crown  a  personal  responsibility  for  all  acts  of  the 
Government,  Ministers  are  privileged  to  share  with  the  Crown 
in  a  personal  immunity  from  vexatious  proceedings  by  ordinary 
process  of  law  for  alleged  acts  of  oppression  or  illegality  in  the 
discharge  of  their  official  acts.  .  .  .  Whether  the  alleged  lia- 
bility arises  out  of  contract  or  out  of  tort  or  from  any  matter  of 
private,  individual  complaint  against  a  Minister  of  the  Crown  for 
acts  done  in  his  official  capacity,  the  ordinary  tribunals  of  justice 
will  afford  him  special  immunity  and  protection. 

The  same  rule  is  true  of  the  heads  of  departments  of 
the  national  government.  Up  to  1870  there  was  only 
one  action  brought  ag-ainst  the  head  of  a  United 
States  executive  department,^  This  case  was  the 
case  of  Stokes  vs.  Kendall/  and  was  decided  ad- 
versely to  the  plaintiff.  It  is  interesting  as  showing 
distinctly  the  attitude  of  the  courts  towards  this  class 
of  cases.  It  was  preceded  by  the  case  of  Kendall  vs. 
the  United  States,^  in  which  the  same  plaintiff  as  in  the 
case  of  Stokes  vs.  Kendall  had  endeavored  to  obtain 
a  mandamns  asfainst  the  Postmaster-General,  The 
Supreme  Court  there  decided  that  a  given  act  was 

'  Mechem,  Public  Officers,  etc.,  p.  395. 

*  Parliamentary  Government  in  England,  2d  ed.,  vol.  i..  pp.  494-495, 

•See  Brown's  case,  6  Court  of  Claims  Rep.,  171,  180. 

*■  3  How.,  87,  '  12  Peters,  524. 


400    CONTROL  OVER   THE  ADMINISTRATION. 

not  discretionary,  but  ministerial  in  character,  and 
therefore  that  a  mandamus  vi\\<^'i  issue.  And  seven 
years  later,  when  the  same  plaintiff  brought  a  suit  for 
damages  against  the  Postmaster-General,  the  court 
held  that  this  same  act,  which  it  declared  in  the  other 
case  to  be  ministerial,  was,  when  a  suit  for  damages 
resulting  from  it  was  brought,  a  discretionary  act, 
and,  therefore,  that  the  Postmaster-General  could  not 
be  held  liable  for  damaees.^ 

It  may  be  added  that  the  immunity  thus  granted  to 
the  higher  officers  of  the  state  does  not  really  diminish 
the  control  possessed  by  the  courts  over  the  adminis- 
tration so  much  as  at  first  sight  it  might  seem,  for  these 
high  officers  must  come  into  relations  with  individuals 
generally  through  the  action  of  their  subordinates, 
and  by  the  American  law  such  subordinates  are 
generally  responsible  for  their  actions,  and  are  not 
protected  by  the  fact  that  they  have  acted  according 
to  instructions  from  their  superiors.^ 

3.  Liability  of  judges. — The  courts,  with  that  ten- 
derness which  all  human  beings  appear  to  have  for  the 
members  of  their  own  class,  have  held  that  in  the 
case  of  judges  of  the  higher  courts  a  distinction  is  to 
be  made  between  acts  done  without  jurisdiction  and 
acts  done  in  excess  of  jurisdiction.  The  leading  case 
upon  this  point  is  that  of  Bradley  vs.  Fisher.^  In 
this  case  it  is  said  : 

Where  there  is  clearly  no  jurisdiction  over  the  subject  matter, 
any  authority  exercised  is  a  usurped  authority,  and  for  the  exer- 
cise of  such  authority,  when  the  want  of  jurisdiction  is  known  to 
the  Judge,  no  excuse  is  permissible,  but  where  jurisdiction  over 

'  See  also  Spalding  vs.  Vilas,  16  r  U.  S.,  483. 

*  Tracy  vs.  Swartout,  10  Peters,  80.  ^  13  Wallace,  335. 


CONTROL  OF  THE  CIVIL  COURTS.  401 

the  subject  matter  is  invested  by  law  in  the  Judge  or  in  the  court 
which  he  holds,  the  manner  and  extent  in  which  the  jurisdiction 
shall  be  exercised  are  generally  as  much  questions  for  his  deter- 
mination as  any  other  questions  involved  in  the  case,  although 
upon  the  correctness  of  his  determination  of  these  particulars  the 
validity  of  his  judgment  may  depend.  Thus,  if  a  Probate  Court, 
invested  only  with  authority  over  wills  and  the  settlement  of 
estates  of  deceased  persons,  should  proceed  to  try  parties  for 
public  offences,  the  jurisdiction  over  the  subject  of  offences 
being  entirely  wanting  in  that  court,  and  this  being  necessarily 
known  to  its  Judge,  his  commission  would  afford  no  protection 
to  him  in  the  exercise  of  the  usurped  authority.  But  if,  on  the 
other  hand,  a  Judge  of  a  Criminal  Court,  invested  with  a  general 
criminal  jurisdiction  over  offences  committed  within  a  certain 
district,  should  hold  a  particular  act  to  be  a  public  offence, 
which  is  not  by  the  law  made  an  offence,  and  proceed  to  the 
arrest  and  trial  of  a  party  charged  with  such  act,  or  to  sentence 
a  party  to  greater  punishment  than  authorized  by  the  law  upon 
its  proper  construction,  no  personal  liability  in  a  civil  action  for 
such  act  would  attach  to  the  Judge,  although  those  acts  would  be 
in  excess  of  his  jurisdiction,  or  of  the  jurisdiction  of  the  court 
held  by  him,  for  these  are  particulars  for  his  judicial  considera- 
tion whenever  his  general  jurisdiction  over  the  subject  matter  is 
invoked.' 

In  the  case,  however,  of  an  inferior  judge  or  magis- 
trate the  rule  is  different.  If  he  exceeds  his  jurisdic- 
tion he  is  Hable  in  damages  to  the  party  injured 
thereby,  even  though  he  was  acting  in  good  faith. 

4.  Liability  of  ministerial  officers. — Another  limita- 
tion which  the  courts  have  placed  upon  their  control 
over  the  action  of  the  administration  is  to  be  found  in 
the  rule  that  purely  ministerial  officers  will  not  be  held 
responsible  for  damages  where  they  have  followed 
instructions,  which  are  legal  on  their  face,  and  which 

'  See  also  Lange  vs.  Benedict,  73  N.  Y.,  12  ;  McCall  vs.  Cohen.  16  S.  C, 

445  ;  42  Am.  Rep.,  6i. 
26 


402    CONTROL  OVER   THE  ADMINISTRATION. 

contain  nothing  which  will  apprise  them  that  such  in- 
structions have  been  issued  in  excess  of  the  jurisdic- 
tion of  the  officer  who  issued  them,^  The  weight  of 
authority  seems  to  be  in  favor  of  the  rule  that  a 
ministerial  officer  is  relieved  from  all  responsibility 
for  the  execution  of  orders,  fair  on  their  face,  even 
when  he  is  satisfied  that  the  officer  issuing  them  acted 
in  excess  of  his  jurisdiction.^ 

This  general  rule  is  applicable,  not  only  to  civil 
officers,  but  also  to  military  persons.  The  general  rule 
of  law  of  this  country,  which  we  have  inherited  from 
England,  is  to  the  effect  that  a  person  does  not  by 
becoming  a  soldier  cease  to  be  subject  to  the  jurisdic- 
tion of  the  ordinary  courts  as  a  citizen.  Nevertheless, 
in  order  to  maintain  that  discipline  without  which  a 
military  force  would  amount  to  nothing,  the  courts 
are  careful  in  the  exercise  of  their  jurisdiction  over 
military  persons,  not  to  hold  them  to  such  responsi- 
bility as  will  cause  them  to  have  hesitation  in  obeying 
orders  which  are  apparently  within  the  jurisdiction  of 
the  officer  issuing  them.'^ 

5.  Liability  for  negligence. — Under  the  English  as 
well  as  the  American  law,  officers  are  held  responsible 
not  merely  for  acts  done  without  jurisdiction,  but  in 
certain  cases  for  the  non-performance  or  negligent 
performance  of  duties  within  their  jurisdiction,  or  for 
bad  faith.  No  officer,  however,  is  held  responsible 
in  damages  for  the  non-performance  or  negligent  per- 
formance of  duties  of  a  merely  public  character.  In 
order  to  be  made  the  basis  of  a  claim  for  damages, 

'  Savacool  vs.  Boughton,  5  Wendell,  N.  Y.,  170;  see  also  Erskine  vs. 
Hohnbach,  14  Wallace,  613,  616  ;  Cooley  On  Taxation,  2d  ed.,  797,  and  cases 
cited.  '  Ibid.,  798.  ^  Com.  vs.  Shortall,  206  Pa.  St.,  165, 


CONTROL  OF  THE  CIVIL  COURTS.  403 

the  duty,  the  neglect  of  which  has  caused  the  damage, 
must  be  one  which  the  individual  suffering  the  damage 
has  the  right,  not  as  a  part  of  the  public,  but  as  an 
individual,  to  have  performed.  Thus,  a  sheriff  is  not 
responsible  for  the  damages  suffered  by  an  individual 
from  the  sheriff's  failure  to  keep  the  peace.^ 

The  law  further  makes  a  distinction  between  the 
different  kinds  of  officers,  affording  a  greater  im- 
munity to  officers  who  are  recognized  as  thoroughly 
judicial  in  character,  than  to  officers  who  are  merely 
ministerial  in  character.  While  this  distinction  be- 
tween the  character  of  the  office  was  of  great  influence 
upon  the  courts  in  the  early  history  of  the  law,  it  is 
believed  that  at  the  present  time  the  distinction  that 
is  to  be  made  is  rather  between  the  duties  which  the 
officer  is  to  perform  than  between  the  officers  who  are 
to  perform  the  duties.  Thus  in  the  case  of  Wilson 
vs.  The  Mayor,^  the  judge  says  : 

The  civil  remedy  for  misconduct  in  ofifice  .  .  .  depends 
exclusively  upon  the  nature  of  the  duty  which  has  been  violated. 
Where  that  is  absolute,  certain,  and  imperative,  and  every  minis- 
terial duty  is  so,  the  delinquent  officer  is  bound  to  make  full 
redress  to  every  person  who  has  suffered  by  such  delinquency. 
Duties  which  are  purely  ministerial  in  their  nature  are  sometimes 
cast  upon  officers  whose  chief  functions  are  judicial.  Where  this 
occurs  and  the  ministerial  duty  is  violated,  the  officer,  although, 
for  most  purposes,  a  judge,  is  still  civilly  responsible  for  such  mis- 
conduct. But  where  the  duty  alleged  to  have  been  violated  is 
purely  judicial,  a  different  rule  prevails  ;  for  no  action  lies  in  any 
case  for  misconduct  or  delinquency,  however  gross,  in  the  per- 
formance of  judicial  duties.  And  although  the  officer  may 
not  in  strictness  be  a  judge,  still,  if  his  powers  are  discretionary, 
to  be  exerted  or  withheld  according  to  his  own  view  of  what  ii 

'  South  vs.  Maryland,  i8  How.  (U.  S.),  396. 
»  I  Denio  (N,  Y.),  595,  599. 


404    CONTROL  OVER   THE  ADMINISTRATION. 

necessary  and  proper,  they  are  in  their  nature  judicial,  and 
he  is  exempt  from  all  responsibility  by  action  for  the  motives 
which  influence  him  and  the  manner  in  which  such  duties  are 
performed. 

The  difference  between  these  two  rules  is  a  real 
one,  inasmuch,  as  has  been  seen  from  the  opinion  just 
cited,  a  ministerial  duty  may  be  imposed  upon  a  judge, 
while  an  of^cer  whose  duties  are  generally  ministerial 
may  be  called  upon  to  exercise  judgment  and  discre- 
tion ;  but  it  is  well  to  remember  that  judicial  ofificers 
are  for  the  most  part  confined  to  the  performance  of 
judicial  duties,  while  ministerial  officers  very  seldom 
are  entrusted  with  the  performance  of  such  duties. 
At  the  same  time  there  is  a  tendency,  in  the  case  of 
officers  who  are  not  discharging  judicial  duties  in 
the  sense  that  they  are  holding  courts,  to  hold  such 
officers  to  a  greater  liability  than  is  imposed  upon  offi- 
cers who  are  engaged  simply  in  the  holding  of  courts. 
There  is  a  class  of  officers  to  whom  the  name  of 
quasi-judicial  is  applied ;  such  as  assessors  for  the 
purpose  of  taxation,  boards  of  health,  election  officers, 
and  so  on.  There  is  a  tendency  in  the  United  States 
in  the  more  recent  decisions  to  relax  the  strictness  of 
the  rule  in  the  case  of  such  officers,  and  to  hold  them 
responsible  for  bad  faith  and  dishonest  purposes,  not- 
withstanding the  judicial  and  discretionary  character 
of  the  act  that  they  performed. 

In  respect  to  such  cases  [says  Judge  Cooley '],  though  they 
may  be  out  of  harmony  with  the  general  rule  .  .  ,  and  the 
reasons  on  which  it  rests,  yet  we  may  perhaps  safely  concede 
that  there  are  various  duties  lying  along  the  borders  between 
those  of  a  ministerial  and  those  of  a  judicial  character  which 

'  Torts,  p.  411, 


CONTROL  OF  THE  CIVIL  COURTS.  405 

are  usually  entrusted  to  inferior  officers  and  in  the  performance 
of  which  it  is  highly  important  that  they  be  kept  as  closely  as 
possible  within  strict  rules.  If  courts  lean  against  recognizing 
in  them  full  discretionary  powers  and  hold  them  strictly  within 
the  limits  of  good  faith,  it  is  probably  a  leaning  that  in  most  cases 
will  be  harmonized  with  public  policy. 

With  this  exception,  however,  the  motives  of  offi- 
cers in  the  performance  of  a  judicial  act  will  not  in 
any  way  affect  their  liability.  If  the  officers  are  in 
fact  corrupt,  the  public  has  its  remedy,  but  the  indi- 
vidual is  not  permitted  to  obtain  redress  against  them 
by  alleging  that  the  action  complained  of  was  the 
result  of  corrupt  or  malicious  motives.^ 

It  is  difficult  to  lay  down  rules  by  which  a  judicial 
or  discretionary  act  may  be  distinguished  from  a 
purely  ministerial  act.  Thus  an  act  does  not  become 
a  judicial  act  merely  because  its  performance  requires 
"  the  ascertainment  from  personal  knowledge  or  by 
information  derived  from  other  sources  of  the  state 
of  facts  on  which  the  performance  of  the  act  becomes 
a  clear  and  specific  duty."^  It  may,  however,  be  said 
that  the  duty  in  order  to  be  a  ministerial  one  must  be 
one  which  the  officer  is  called  upon  to  perform,  and 
which  he  can  perform.  Thus,  where  the  performance 
of  a  duty  "  requires  the  possession  or  use  of  particular 
means  or  agencies  or  the  expenditure  of  money,  it  must 
appear  that  the  officer  had  either  the  means,  agencies, 
or  funds  required,  or  the  facilities  for  acquiring  them."  ^ 
Further,  it  must  be  a  duty  which  it  was  absolutely 

'  See  Bradley  vs.  Fisher,  13  Wall.,  335  ;  Rains  vs.  Simpson,  50  Tex.,  495; 
32  Am.  Rep.,  609  ;  Pratt  vs.  Gardner,  2  Cush.  (Mass.),  63  Am.  Dec,  652. 

*  Grider  vs.  Tally,  77  Ala.,  422  ;  52  Am.  Dec,  65. 

^  Mechem,  op.  cit,,  §  669,  citing  Nowell  vs.  Wright,  3  Allen  (Mass.),  166;  80 
Am.  Dec,  62. 


4o6    CONTROL  OVER  THE  ADMINISTRATION. 

imperative  upon  the  officer  to  perform,  a  duty  the 
non-performance  of  which  does  not  lie  in  the  officer's 
discretion/  This  being  the  case,  the  officer  is  not 
excused  for  any  mistake,  notwithstanding  it  may  have 
been  made  in  perfect  good  faith.^ 

It  is,  however,  to  be  remembered  that  it  is  a  maxim 
of  the  law  that  officers  are  presumed  to  have  done 
their  duty.  The  burden,  therefore,  of  showing  a 
failure  by  an  official  to  perform  his  duty  is  on  the 
person  alleging  such  failure.^  But,  while  it  is 
presumed  that  officers  have  done  their  duty,  at  the 
same  time,  except  in  the  case  of  courts  of  law  having 
general  jurisdiction,  this  presumption  is  not  made  as 
to  jurisdiction.  In  the  case  of  all  tribunals  possess- 
ing special  and  limited  jurisdiction,  and  all  admin- 
istrative officers  are  regarded  as  embraced  within  this 
class,  inasmuch  as  their  duties  are  either  stated  in 
detail  by  the  decisions  of  the  courts,  if  they  are  com- 
mon-law officers,  or  by  statute  if  they  are  statutory 
officers,  the  jurisdiction  must  appear  affirmatively  on 
the  face  of  the  proceedings. 

Further,  the  distinction  between  absolute  lack  of 
jurisdiction  and  excessive  jurisdiction,  which  applies 
to  the  higher  courts,  does  not  apply  to  the  lower 
tribunals.  Among  these  are  to  be  included  all  admin- 
istrative authorities.  This  brings  it  about  that  an  act 
which  might  not  in  any  way  affect  the  jurisdiction  of 
a  tribunal  of  general  jurisdiction  so  as  to  make  the 
officer  who  performed  the  acts  responsible  for  dam- 

'  Mechem,  op.  cit.,  §  669. 

'See  Amy  vs.  The  Supervisors,  II  Wall.,  136. 

^  See  Mechem,  op,  cit.,  §  677,  citing  Bank  vs.  Herold,  74  Cal.,  603  ;  5  Am, 
St.  R.,  476. 


CONTROL  OF  THE  CIVIL  COURTS.  407 

ages,  may  cause  the  subsequent  acts  of  inferior  tribu- 
nals to  be  invalid,  and  will  result  in  an  excess  of 
jurisdiction  which  will  make  the  person  who  is  guilty 
of  such  excess  of  jurisdiction  responsible  in  damages.^ 

6.  Liability  of  officers  for  acts  of  subordiiiates. — 
Finally,  "  it  is  well  settled  as  a  general  rule  of  law  that 
public  officers  in  the  performance  of  their  public  func- 
tions are  not  liable  to  third  persons  either  for  the 
misfeasances  or  positive  wrongs  or  for  the  non-fea- 
sances, negligences,  or  omissions  of  their  official  sub- 
ordinates."" 

This  rule  as  to  the  non-liability  of  public  officers  for 
the  acts  of  their  subordinates  is  subject  to  two  excep- 
tions. In  the  first  place,  where  it  is  owing  to  the 
negligence  of  the  superior  or  to  his  positive  action 
that  the  damage  is  done  by  the  subordinate,  the 
superior  is  responsible.^  In  the  second  place,  an  ex- 
ception is  made  to  the  rule  in  the  case  of  ministerial 
officers  whose  liability  for  the  damage  occasioned  by 
their  illegal  acts  is  greater  than  that  of  judicial  officers. 
It  is  held  that  the  responsibility  of  ministerial  officers 

'  Thus,  take  the  case  of  French  vs.  Edwards,  13  Wallace,  506,  to  which  ref 
erence  has  several  times  been  made.  In  this  case  the  sheriff  in  the  sale  of 
lands  for  taxation  had  not  followed  carefully  the  provisions  of  the  stttute.  It 
was  held  that  as  soon  as  he  ceased  to  follow  the  provisions  of  tb?  statute,  which 
in  this  case  were  regarded  as  mandatory,  inasmuch  as  they  affected  the  rights  of 
individuals,  he  ceased  to  have  jurisdiction,  and  his  acts  thereafter  were  invalid. 
Take  also  the  case  of  Mygatt  vs.  Washburn,  15  N.  Y.,  316.  In  this  case  the 
assessors  assessed  a  person  who  was  not  within  their  jurisdiction,  and  it  was 
held  that  they  were  liable  for  the  damages  which  such  person  suffered  in  being 
obliged  to  pay  taxes  on  the  illegal  assessment. 

-  Mechem,  op.  cit.,  §  789  citing  Robertson  vs.  Sichel,  127  U.  S.,  507-518  ;  see 
also  Richmond  vs.  Long,  17  Grattan  (Va.),  375,  378  ;  95  Am.  Dec,  461. 

^See  Wiggins  vs.  Hathaway,  6  Barb.  (N.  Y.),  632,  635  ;  Bishop  vs.  William- 
son, II  Me.,  495.  In  this  case  a  postmaster  was  held  liable  for  the  default  of 
an  assistant  whom  he  had  not  required  to  take  the  oath  prescribed  by  law.  See 
also  Ely  vs.  Parsons,  55  Conn.,  S3. 


4o8     CONTROL  OVER  THE  ADMINISTRATION. 

cannot  be  evaded  by  delegating  the  performance  of 
their  duties  to  another.  The  rule  is  therefore  well 
settled  that  the  ministerial  officer  who  owes  a  duty  to 
an  individual  is  liable  to  that  individual  for  the  neof- 
ligence  of  his  deputies/  This  rule,  of  course,  does  not 
make  him  liable  for  the  extra-official  acts  or  miscon- 
duct of  his  deputies^  ;  nor  for  the  omission  or  neglect 
of  an  act  or  duty  which  the  law  does  not  require 
him  officially  to  perform^;  nor  for  the  acts  which 
were  directed  by  the  complaining  party  himself.^ 

Finally,  it  is  to  be  noted  that  a  public  officer  of 
whatever  grade  is  liable  for  the  negligence  or  other 
defaults  of  his  private  servant  or  employee  who  is  not 
regarded  as  an  officer  of  the  government.  When  the 
subordinate,  whose  acts  are  the  cause  of  the  damage, 
does  not  hold  an  office  known  to  the  law,  but  his  ap- 
pointment is  private  and  discretionary  with  the  officer 
appointing  him,  the  principal  is  responsible  for  his 
acts.  Thus,  a  selectman  was  held  liable  for  the 
damages  caused  by  a  laborer  employed  by  him  to  cut 
brush  and  trees  in  order  to  make  the  highway  passable, 
who  through  mistake  cut  down  some  trees  upon  the 
land  of  an  adjoining  proprietor,^ 

'  Robinson  vs.  Rohr.,  73  Wis.,  436.  See  State  vs.  Moore,  19  Mo.,  369;  61 
Am.  Dec,  563  ;  Flanagan  vs.  Hoyt,  36  Vt.,  565  ;  86  Am.  Dec,  670. 

'^  State  vs.  Moore,  19  Mo.,  369  ;  61  Am.  Dec,  563. 

2  Harrington  vs.  Fuller,  18  Me.,  277  ;  36  Am.  Dec,  719. 

^  Gorman  vs.  Gale,  7  Cowen  (N.  Y.),  739  ;  17  Am.  Dec,  549. 

^  Ely  vs.  Parsons,  55  Conn.,  83  ;  see  also  Robinson  vs.  Rohr,  73  Wis.,  436. 
On  the  general  subject  see  Mechem,  §§  788-802,  op.  cii. 


CHAPTER  III. 

CONTROL   OF    THE    CRIMINAL   COURTS. 

/. — Control  of   the   courts   over    the  prosecution   of 

individuals. 

The  control  which  the  criminal  courts  exercise 
over  the  administration  is  exercised  in  two  ways. 
In  the  first  place,  the  courts  are  called  upon  to  enter- 
tain prosecutions  brought  by  the  officers  of  the  ad- 
ministration against  individuals,  for  the  violation  of 
laws  and  administrative  ordinances,  whose  violation 
has  been  made  punishable  criminally,  or  for  unlawful 
resistance  to  officers  in  the  discharge  of  their  duties. 
In  all  such  cases  the  criminal  courts  have  the  right  to 
refuse  to  punish  the  person  prosecuted  on  the  ground 
that  the  administrative  officers  have  exceeded  their 
powers  and  have  acted  without  jurisdiction.  The 
criminal  courts  in  this  way  delimit  the  sphere  of  ad- 
ministrative action  and  force  the  administration  to 
keep  within  the  bounds  set  by  law. 

In  some  instances  the  control  which  the  courts  thus 
have  over  administrative  officers  is  of  such  a  charac- 
ter that  its  exercise  may  prevent  the  administration 
from  enforcing  the  law.  This  is  particularly  true  of 
those  cases  in  which  the  decision  reached  by  the  court 
is  reached  through  the  aid  of  a  jury,  the  members  of 

409 


4IO     CONTROL  OVER   THE  ADMINISTRATION. 

which  are,  under  our  law,  chosen  within  the  locality 
where  the  violation  of  the  law  complained  of  is 
alleged  to  have  taken  place.  The  requirement  of 
our  law,  that  the  verdict  of  a  jury  must  be  reached  as 
a  result  of  their  unanimous  action,  brings  it  about 
that  in  many  instances  it  is  practically  impossible  for 
the  administration  to  enforce  a  law  which  is  un- 
popular in  the  district  from  which  the  jury  is  chosen. 
A  most  notable  instance  of  this  paralysis  of  the 
efforts  of  the  administration  in  the  enforcement  of 
the  law  is  to  be  found  in  the  case  of  the  attempt  to 
enforce  a  prohibition  law  or  a  law  providing  for  the 
closing  on  Sundays  of  liquor  saloons  in  cities.  In 
these  cases  the  control  possessed  by  the  criminal 
courts  over  administrative  officers  is  so  made  use 
of,  in  many  instances,  as  absolutely  to  prevent  the 
enforcement  of  the  law. 

In  some  instances  the  legislature  has  frankly  recog- 
nized the  effect  upon  the  enforcement  of  the  law  of 
the  existence  of  the  right  of  a  jury  trial  and  has 
attempted  to  substitute  therefor  the  action  of  the 
equity  branch  of  the  courts.  Provision  in  these 
cases  is  made,  in  addition  to  the  prosecution  before 
the  criminal  courts  of  the  violation  of  the  law,  for 
the  issue  of  an  injunction  by  the  proper  court  to 
restrain  the  doing  of  the  act  which  the  law  is  attempt- 
ing to  prevent.  In  these  cases  refusal  upon  the  part 
of  individuals  to  obey  the  injunction  of  the  court  is 
made  a  contempt  of  court,  which,  in  addition  to  being 
punishable  criminally,  is  followed  by  the  commit- 
ment of  the  person  guilty  of  such  contempt  by  the 
court  itself  without  the  aid  of  a  jury.  This  method 
of  securing  the  imprisonment  of  persons  for  violation 


CONTROL  OF  THE  CRIMINAL  COURTS.       411 

of  the  law  without  resort  to  a  jury  has  been  upheld 
by  the  Supreme  Court  of  the  United  States.^ 

//. — Power  of  the  aHininal  courts  to  punish  officials. 

Method  of  prosecutio7i. 

The  second  way  in  which  the  criminal  courts  exer- 
cise a  control  over  the  administration  is  by  entertain- 
ing criminal  prosecutions  of  officers  for  the  violation 
of  their  duties.  The  extent  and  effectiveness  of  this 
method  of  control  depend,  in  the  first  place,  upon  the 
content  of  the  criminal  law — that  is,  on  the  extent 
to  which  the  violation  of  of^cial  duty  is  punishable 
criminally,  and,  in  the  second  place,  on  the  method  of 
prosecution.^  For,  while  the  content  of  the  criminal 
law  may  be  such  as  to  provide  for  a  large  control 
over  the  administration,  if  the  method  of  prosecution 
provided  by  law  gives  the  administration  a  large  dis- 
cretion as  to  when  the  control  shall  be  exercised — that 
is,  if  the  courts  or  individuals  have  little  power  of  in- 
itiating and  carrying  on  prosecutions  against  ofificers, 
the  control  of  the  criminal  courts  may  amount  virtu- 
ally to  nothing. 

There  are  two  methods  of  conducting  prosecu- 
tions, the  one  through  a  private  prosecutor,  the  other 
through  the  public  prosecutor.  So  far  as  the  control 
of  the  criminal  courts  aims  at  the  protection  of  private 
rights,  the  system  of  private  prosecution  will  undoubt- 
edly produce  the  best  results.  So  far  as  that  control 
aims  at  the  efificiency  of  the  administration,  the  sys- 
tem of   public   prosecution   is  capable   of   producing 

'  Mugler  vs.  Kansas,  123  U.  S.,  623;  see  also  Dunbar,  "Government  by  In- 
junction," The  Law  Quarterly,  October,  1897. 

'  For  the  content  of  the  criminal  law,  see  supra,  298. 


412     CONTROL  OVER  THE  ADMINISTRATION. 

the  best  results,  since  it  is  certain  that  private  prose- 
cutors usually  initiate  prosecutions  only  where  their 
private  rights  have  been  violated. 

The  American  system  of  criminal  prosecutions  is  a 
development  of  the  English  system.  The  English 
system  was  based  upon  the  idea  of  private  prosecu- 
tion. The  usual  method  of  prosecution  was  a  com- 
plaint by  the  individual  against  whom  the  crime 
had  been  committed  to  a  committing  magistrate  who 
made  the  preliminary  examination  of  the  prisoner  and 
sent  the  case  up  to  the  grand  jury  in  case  the  prisoner 
was  held.  The  grand  jury  then  proceeded  by  in- 
dictment. The  grand  jury  was  not,  however,  con- 
fined in  its  action  to  the  cases  sent  up  by  committing 
magistrates,  but  was  authorized,  as  well,  to  proceed 
of  its  own  motion  in  reo^ard  to  matters  of  which  it  had 
personal  knowledge.  In  this  way  it  was  possible  for 
individuals  to  make  their  complaints  directly  to  the 
grand  jury  or  to  members  thereof.  The  only  import- 
ant public  prosecutors  in  the  English  system  were 
to  be  found  in  the  attorney-general  and  solicitor- 
general,  who  were  authorized  to  proceed  of  their  own 
motion  by  means  of  a  criminal  information  in  certain 
cases  of  great  public  interest. 

During  the  course  of  the  nineteenth  century,  there 
developed  in  most  of  the  states  of  the  American 
Union  a  public  prosecutor,  known  in  some  cases  by 
the  name  of  district  attorney,  in  others  by  that  of  cir- 
cuit attorney,  state's  attorney,  or  prosecutor  of  the 
pleas.  An  investigation  of  the  development  of  this 
office  will  show  that  it  is  the  result  of  an  attempt  to 
disintegrate  the  office  of  attorney-general.  As  a 
general  thing,  the  first  step  in  the  development  was 


CONTROL  OF  THE  CRIMINAL  COURTS,       413 

the  provision  for  an  assistant  or  deputy  attorney- 
general,  to  be  appointed  by  the  governor  of  the  state, 
with  jurisdiction  either  over  some  particular  county 
or  some  judicial  district  of  the  state.  Later  on  this 
officer  became,  outside  of  the  national  administrative 
system,  elective  by  the  people  of  the  district  over 
which  he  had  jurisdiction.^ 

The  establishment  of  this  office  was  apparently  due 
in  large  part  to  the  desire  of  preventing  inconsiderate 
\  prosecutions.  Great  discretion  was  therefore  accorded 
to  the  public  prosecutors  in  the  initiation  of  prosecu- 
tions, although  a  monopoly  of  the  power  seems  in  no 
instance  to  have  been  given  them — that  is,  the  in- 
dividual injured  was  always  permitted  and  is  still  per- 
mitted to  make  his  complaint  before  a  magistrate, 
when  the  grand  jury  will  act  in  very  much  the  same 
way  as  under  the  old  English  practice.  Some  of  the 
cases,  however,  would  seem  to  indicate  that  the  indi- 
vidual has  no  longer  the  right  to  go  before  the  grand 
jury  and  make  his  complaint  directly  to  them.^  This 
power  has  been  replaced  by  the  power  given  to  the 
public  prosecutor  to  present  cases  himself  to  the 
grand  jury. 

As  the  management  of  the  case  before  the  grand 
jury  is  largely  in  the  hands  of  the  public  prosecu- 
tor, the  result  is  that,  for  the  punishment  of  almost  all 
crimes  which  the  officers  of  the  administration  may 
commit,  the  co-operation  of  the  public  prosecutor  has 
become  a  practical  necessity.^    This  is  so,  furthermore, 

'  See  People  vs.  Supervisors,  134  N.  Y.,  i. 

^  McCuUough  vs.  Commonwealth,  67  Pa.  St.,  30;  Fout  vs.  State,  3  Haywood 
(Tenn.),  gS. 

^  This  is  particularly  true  in  those  states  in  which  the  public  prosecution  may 
proceed  without  the  grand  jury,  i.  e.,  by  information. 


414     CONTROL  OVER  THE  ADMINISTRATION. 

because  of  the  fact  that  the  conduct  of  the  prose- 
cution  after  it  has  once  been  initiated  is  largely,  in- 
deed, almost  entirely,  in  the  hands  of  that  officer. 
Some  of  the  cases  on  this  point  go  so  far  as  to  inti- 
mate that  the  participation  of  other  counsel  than  the 
public  prosecutor  in  a  prosecution  for  crime  is  abso- 
lutely forbidden.^  Others  declare  that  though  other 
counsel — that  is,  counsel  representing  some  private 
individual  interest — may  be  admitted,  their  admission 
is  a  privilege  which  may  be  granted  or  refused  by  the 
district  attorney,  and  not  a  right  which  the  individual 
may  demand  by  application  to  the  courts.^  Finally, 
a  few  cases  would  seem  to  indicate  that  the  courts 
possess  an  inherent  power  to  appoint  one  of  the 
attorneys  of  the  court  to  carry  on  the  prosecu- 
tion where  that  is  necessary  to  prevent  a  failure  of 
justice.^ 

The  liability  that  there  will  be  a  failure  of  justice 
owing  to  the  refusal  of  the  district  attorney  to  con- 
duct a  prosecution  has  brought  it  about  that  in 
New  York  resort  is  had  to  the  central  administrative 
control  to  supplement  the  control  possessed  by  the 
criminal  courts.  Here  the  governor  is  authorized  to 
require  the  attorney-general  to  attend  in  person  or 
by  one  of  his  deputies  a  criminal  court  or  appear 
before  a  grand  jury  for  the  purpose  of  managing  and 

'  See,  for  example,  People  vs.  Hurst,  41  Mich.,  328. 

*  See  State  vs.  Kent,  4  N.  D.,  577. 

'  Dukes  v$.  State,  ii  Ind.,  557;  71  Am.  Dec,  370;  Mitchells.  State,  22  Ga., 
211;  68  Am.  Dec,  493.  In  these  cases  it  is  held  either  that  the  court  may  ap- 
point some  one  to  conduct  the  prosecution,  where  the  public  prosecutor  has 
been  retained  by  the  criminal,  or  in  case  he  is  unable  to  perform  his  duty. 
Neither  of  the  cases,  however,  holds  that  in  case  the  prosecuting  officer  refuses 
to  perform  his  duty,  or  performs  it  in  a  negligent  manner,  the  court  may 
appoint  a  prosecutor  to  conduct  the  prosecution  in  his  place. 


CONTROL  OF  THE  CRIMINAL  COURTS.       415 

conducting  in  such  court  or  before  such  jury  such 
criminal  actions  or  proceedings  as  shall  be  specified 
by  the  governor.  In  such  a  case  the  attorney- 
general  or  his  deputy  as  authorized  by  law  shall 
alone  exercise  all  the  powers  and  perform  all  the 
duties  in  respect  to  such  actions  or  proceedings 
which  the  district  attorney  would  otherwise  be  au- 
thorized or  required  to  exercise  or  perform.^  In 
Pennsylvania  a  statute  provides  that  if  the  district 
attorney  shall  neglect  or  refuse  to  prosecute  in  due 
form  of  law  any  criminal  charge  regularly  returned  to 
him  or  to  the  court  of  the  proper  county,  or  if,  in  case 
of  the  admission  of  the  counsel  of  a  private  party,  the 
district  attorney  shall  differ  with  him  as  to  the  con- 
duct of  the  proceedings,  the  court,  on  the  petition  of 
the  private  prosecutor  may  direct  the  private  counsel 
of  the  prosecutor  to  conduct  the  entire  proceeding.^ 
It  will  be  noticed  that,  different  from  the  New  York 
law,  the  Pennsylvania  law  attempts  to  reinforce  the 
control  of  the  criminal  courts  by  calling  to  their  aid 
the  private  prosecutor. 

By  the  original  English  law  the  public  prosecutors 
had  the  right  of  entering  what  is  known  as  a  nolle 
prosequi,  the  effect  of  which  was  to  discontinue  the 
action,  without,  however,  exempting  the  prisoner 
from  the  liability  to  a  subsequent  indictment  for 
the  same  offence.  It  is  difficult  to  say  exactly  what 
power  the  American  public  prosecutor  has  at  the 
present  time  to  enter  such  a  nolle  prosequi.  Appar- 
ently the  better  rule  with  regard  to  this  matter  is  that, 
prior  to  the  commencement  of  the  trial  in  open  court, 

'  See  Laws  of  1895,  ch.  821;  see  also  State  vs.  District  Court,  22  Mont.,  25. 
'  See  Pennsylvania  Law,  March  12,  1868. 


41 6     CONTROL  OVER  THE  ADMINISTRATION. 

the  public  prosecutor  has  the  right  to  enter  such  a 
nolle  prosequi  in  his  own  discretion,  but  that,  subse- 
quent to  the  beginning  of  the  trial  of  the  prisoner, 
this  right  is  conditioned  upon  obtaining  the  consent 
of  the  court.^  In  some  states,  however,  as,  for  ex- 
ample, in  New  York,  the  district  attorney  has  no 
power  whatever  to  enter  a  nolle  prosequi,  but  may 
move  the  court  to  dismiss  the  indictment.^ 

The  method  of  prosecution  which  has  been  devel- 
oped in  the  United  States  tends  naturally  greatly  to 
relax  the  control  which  the  criminal  courts  have  over 
administrative  officers,  for  the  public  prosecutor,  in 
whose  hands  is  practically  the  power  both  to  initiate 
and  to  conduct  prosecutions  against  officers  of  the 
administration,  is,  whatever  may  be  the  method  of 
organizing  the  system,  in  more  or  less  close  affiliation 
with  the  administration,  and  is  more  than  likely  to 
overestimate  the  importance  of  administrative  inde- 
pendence, even  to  the  detriment  of  private  rights  and 
in  some  cases  of  administrative  efficiency.  Where 
the  public  prosecutor  is  dependent  in  tenure  upon 
some  superior  officer,  as  is  the  case  in  the  national 
administration,  where  he  may  be  dismissed  at  any 
time  by  the  President,  the  danger  is  very  great  that 
the  administration  may  prevent  the  exercise  by  the 
criminal  courts  of  their  control  over  administrative 
officers  through  its  power  over  the  public  prosecutors. 
Even  in  the  case  that  public  prosecutors  are  elected 
by  the  people  of  the  district  over  which  they  have 
jurisdiction,  which  is  the  rule  in  the  state  administra- 

'  For  an  exhaustive  examination  of  the  powers  of  the  district  attorney  in 
this  matter  see  State  vs.  Moise,  48  La.  Ann.,  109. 

*  See  New  York  Code  of  Criminal  Procedure,  sec.  672. 


CONTROL  OF  THE  CRIMINAL  COURTS.       417 

tion,  the  control  of  the  party  is  so  strong  as  to  make  it 
sometimes  practically  impossible  to  secure  energetic 
prosecution  of  official  criminals  with  whom  the 
leaders  of  the  party  are  in  sympathy.  We  have  had, 
in  our  administrative  history,  many  instances  of  the 
refusal  on  the  part  of  the  district  attorney  to  proceed 
with  the  prosecution  of  public  officers,  or  of  such 
negligence  on  his  part  in  conducting  a  prosecu- 
tion which  he  has  been  forced  by  public  opinion 
[  to  initiate  that  officers  guilty  of  official  and  other 
crimes  have  been  able  to  escape  punishment  for  their 
actions.  In  the  national  administration,  in  addition 
to  the  power  which  the  President  has  over  the  dis- 
trict attorneys,  is  to  be  mentioned  another  power, 
through  the  exercise  of  which  almost  any  prosecution 
against  an  official  may  be  blocked,  namely,  the  power 
which  the  attorney-general  of  the  United  States  says 
the  President  possesses  of  entering  a  7ioUe  prosequi 
at  any  stage  of  criminal  proceedings.^ 

*  Cf,  2  Opinions  of  the  Attorneys-General,  482. 


CHAPTER  IV. 

EXTRAORDINARY    JUDICIAL    REMEDIES. 

/. — Necessity  of  peculiar  judicial  re^nedies. 

The  direct  judicial  control  over  the  administration, 
which  has  so  far  been  considered,  has  been  found  in 
the  remedies  offered  to  individuals  against  officers  as 
mere  persons  to  obtain  satisfaction  for  the  commission 
of  illegal  acts.  It  has  been  seen  how  careful  the  law  is 
to  limit  both  the  civil  and  the  criminal  responsibility  of 
officials  in  order  to  protect  them  from  vexatious  suits. 
It  often  requires  practically  an  absolute  overstepping 
of  their  jurisdiction,  or  corruption  where  they  have 
acted  within  it,  in  order  to  found  the  responsibility, 
and  all  but  denies  any  responsibility  on  the  part  of 
the  government  for  the  acts  of  its  officers. 

But,  even  were  this  method  of  judicial  control 
more  easily  exercised  than  it  is,  it  would  be  found  in 
many  cases  to  be  ineffectual.  A  civil  suit  for  damages 
against  an  official  may  be  an  altogether  inadequate 
remedy,  because  damages  will  not  in  some  cases  be  an 
adequate  means  of  relief,  and  because,  even  if  they 
were,  the  official  sued  may  not  be  the  possessor  of 
enough  property  to  satisfy  the  judgment.  Again,  the 
successful  prosecution  of  a  criminal  suit  against  an 
officer  may  have  value  in  tempering  the  future  con- 

418 


EX  TRA  ORDINA  R  V  JUDICIAL  REMEDIES.    4 1 9 

duct  of  officials,  but  does  not  result  in  any  actual 
improvement  in  the  condition  of  the  individual  whose 
rights  have  been  violated.  In  both  cases  a  right  may 
have  been  violated  and  adequate  satisfaction  may  not 
have  been  made  by  the  application  of  ordinary  judi- 
cial remedies. 

Were  the  remedies  which  have  been  mentioned 
the  only  means  which  the  courts  had  to  control  the 
actions  of  the  administration  in  the  interest  of  private 
rights,  the  judicial  control  over  the  administration 
would  thus  be  quite  incomplete.  Some  means  must 
be  provided  by  which  the  courts  may  directly  control 
the  acts  of  the  administration.  It  may  be  of  vital  im- 
portance that  a  thing  be  done  which  the  law  says 
shall  be  done.  It  is  not  just  to  tell  an  individual  that 
he  must  wait  until  his  ricrht  has  been  violated  and 
then  sue  the  proper  official  for  damages,  or  even 
prosecute  him  criminally.  The  individual  desires 
a  definite  thing  done  by  the  administration  which  the 
law  says  shall  be  done.  Again,  it  may  be  of  vital  im- 
portance that  an  officer  be  prevented  from  doing  an 
act  which  he  threatens  to  do,  or  that  a  decision  which 
is  retrarded  as  unfair  or  illeo-al  be  reviewed  and  an- 
nulled  or  amended.  Here,  for  the  same  reason  as 
before,  it  is  not  right  to  force  the  individual  to  rely 
solely  on  his  power  to  sue  the  officer  in  damages  or 
prosecute  him  criminally. 

In  all  these  cases,  if  individual  rights  are  to  be  ade- 
quately protected  against  the  administration,  some 
method  of  judicial  control  must  be  devised  in  addition 
to  those  already  mentioned.  Some  means  must  be 
offered  of  reaching  the  acts  and  not  the  persons  of  the 
officers  of  the  administration.     The  various  remedies 


420     CONTROL  OVER   THE  ADMINISTRATION. 

through  which  the  courts  ordinarily  exercise  a  control 
over  the  acts  of  the  administration  are  known  to  the 
American  law  as  extraordinary  remedies,  since,  as  a 
general  thing,  the  jurisdiction  of  the  proper  courts 
may  be  invoked  in  their  application  only  where  there 
is  no  other  adequate  means  of  relief.  Special  courts  or 
special  statutory  remedies  may  also  be  formed  for  the 
exercise  of  this  control.  The  former  method  is  that 
which  has  been  in  the  main  adopted  in  England  and 
the  United  States,  although  instances  of  special  courts 
and  special  statutory  remedies  are  to  be  found. 

//. — History  of  the  English  method. 

I.  History  to  the  beginning  of  the  eighteenth  cen- 
tury.— The  English  system  of  extraordinary  remedies, 
whose  main  principles  have  been  adopted  in  the 
United  States,  is  simply  an  outgrowth  of  the  original 
system  of  administrative  control.  The  Norman  politi- 
cal system  made  no  clear  distinction  between  govern- 
mental authorities.  All  powers  of  government  were 
consolidated  in  the  hands  of  the  Crown.  First  to  be 
differentiated  was  the  legislative  authority,  the  Parlia- 
ment. But  for  a  long  time  after  the  differentiation  of 
Parliament  there  was  almost  no  legal  distinction  be- 
tween the  position  of  the  officers  who  administered 
justice  and  that  of  the  officers  who  administered 
government.  Indeed,  most  important  officers  dis- 
charged functions  in  both  branches,  and  all  alike  were 
regarded  as  merely  the  servants  of  the  Crown.  Some, 
it  is  true,  were  engaged  mainly  in  the  application  of 
the  private  law,  others  were  engaged  mainly  in  the 
application  of  the  public  and  administrative  law.    But 


EXTRAORDINARY  JUDICIAL  REMEDIES.    421 

all  were  officers  of  the  Crown,  which  directly  or  in- 
directly could  remove  them  all  from  office  and  could 
dictate  to  them  what  should  be  the  decision  of  the 
cases  which  were  brought  before  them.^ 

To  the  officers  of  one  of  these  courts,  however,  viz., 
the  court  of  king's  bench,  which  was  regarded  as  oc- 
cupying a  superior  position,  because  the  Crown  by  a 
fiction  of  the  law  was  supposed  always  to  be  present 
in  it,^  was  given  a  supervisory  power  over  all  other 
authorities.^  If  any  one  was  aggrieved  by  an  act  of  a 
subordinate  officer  of  the  Crown,  he  had  the  riaht  to 
appeal  to  the  Crown,  which  was  the  fountain  of  justice," 
and  such  an  appeal  went  to  the  court  of  king's  bench. 
At  first  it  seems  to  have  gone  to  the  Curia  Regis  or 
King's  Council,  before  the  development  of  the  court  of 
king's  bench.^  Indeed,  after  the  development  of  the 
court  of  king's  bench,  when  the  members  of  this  court 
became  very  technical  in  their  application  of  the  law, 
appeals  went  in  many  cases  directly  to  the  Crown 
and  were  attended  to  generally  by  the  chancellor  or 
the  council.^  For  the  King  at  the  time  of  the  forma- 
tion of  the  court  of  king's  bench  specially  reserved 
to  himself  the  decision  of  particularly  difficult  cases.' 
From    these   reserved    judicial   powers  grew  up   the 

'  Gneist,  History  of  the  English  Constitution,  i.,  390;  High,  Extraordinary 
Legal  Remedies,  3d  ed. ,  p.  5.  As  to  the  influence  of  the  Crown  over  the  de- 
cisions of  the  judges  even,  witness  the  famous  case  of  John  Hampden  in  the 
court  of  the  exchequer. 

^  See  as  to  the  origin  of  this  fiction,  Stubbs,  Constitutional  History,  i.,  487 
ii.,  267  ;  cf.  Blackstone,  iii.,  41. 

^Gneist,  History  etc.,  i.,  384. 

''  See  Stubbs,  op.  cit.,  1.,  421  ;  Palgrave,  An  Essay  upon  the  Original  Authority 
of  the  King  s  Council,  p.  61. 

*  I  Ryley's  Pleadings,  534  ;  Abbreviatio  Placitorum,  21. 

*  Stubbs,  ii.,  267. 
"" Ibid.,  i.,  525. 


42  2     CONTROL  OVER  THE  ADMINISTRATION. 

court  of  chancery  as  well  as  other  courts.'  In  answer 
to  such  appeals,  the  court  of  king's  bench  issued  in  the 
name  of  the  Crown  certain  writs  directed  to  the  officer 
whose  decision  was  complained  of,  and  so  framed  as  to 
afford  the  desired  relief.  Thouo^h  these  writs  were 
originally  issued  under  the  king's  great  seal  from  the 
office  of  the  chancellor,"  the  courts  soon  obtained  the 
right  to  issue  them  directly.^  These  writs  were  named 
from  the  most  prominent  words  in  them — words  which 
largely  expressed  the  purpose  of  the  writ.  Thus,  if 
any  one  appealed  to  the  Crown  to  force  a  recalcitrant 
officer  to  do  something  which  the  law  of  the  land  com- 
manded the  officer  to  do,  the  writ  which  was  issued  in 
answer  to  the  appeal  was  called  a  writ  of  mandamus.'^ 

At  the  same  time  that  the  court  of  king's  bench 
was  developing  these  special  remedies,  which  became 
known  as  extraordinary  legal  remedies  or  prerogative 
writs,  the  chancellor,  the  keeper  of  the  King's  con- 
science, was,  through  the  exercise  of  the  reserved 
judicial  powers  of  the  King,  also  developing  a  series 
of  special  remedies  called  equitable  remedies,  the  most 
important  of  which,  from  the  point  of  view  of  ad- 
ministrative law,  was  the  bill  of  injunction.  Origi- 
nally, however,  the  injunction  does  not  seem  to  have 
been  made  use  of  commonly  against  officers. 

While  most  of  the  writs  issued  by  the  royal  courts 
were  ultimately  issued  to  litigants  upon  proper  de- 
mand as  of  course,  and  were  known  as  writs  ex  debito 

'  Stubbs,  ii.,  275,  601-603. 

"  Palgrave,  op.    cit.,  pp.  8,  16,  17. 

^Gneist,  Hist.,  i.,  393.  See  also  Reeves,  History  of  the  English  Law,  Fin- 
layson's  ed.,  ii.,  394,  507,  605. 

■•The  word  "  mandamus"  was  applied  originally  to  all  the  commands  of  the 
King,  but  was  later  confined  to  the  writ  issued  by  the  court  of  king's  bench. — 
High,  op.  cit.,  p.  5. 


EXTRAORDINARY  JUDICIAL  REMEDIES.    423 

justitics,  the  writs  by  means  of  which  the  court  of 
king's  bench  exercised  its  supervisory  powers  over  the 
other  authorities  do  not  seem  to  have  become,  in  early 
times  at  any  rate,  writs  of  rights,  writs  ex  debito  jus- 
titice,  but  were  issued  only  in  extraordinary  cases  when 
some  injustice  was  done  which  could  not  be  remedied 
in  the  ordinary  way.  They  were  known,  therefore, 
as  "prerogative  writs."  The  same  was  practically 
true  of  the  equitable  remedies,  and  particularly  of  the 
bill  of  injunction. 

On  the  return  to  these  writs,  generally  only  ques- 
tions of  law  were  considered.  They  were  made  use 
of  simply  to  keep  the  lower  authorities  within  the 
bounds  of  the  law,  and  could  not  be  used,  after  the 
practice  in  regard  to  them  became  crystallized,  to 
review  any  question  of  fact  or  of  expediency.  It 
therefore  became  necessary  to  develop  some  further 
remedy,  unless  the  lower  authorities  were  to  be  per- 
mitted to  decide  such  questions  free  from  all  control. 
Such  a  method  was  found  in  the  power  which  was 
granted  to  the  individual  to  appeal  to  the  Privy 
Council.  Such  appeals  the  council  might  hear  as  a 
result  of  the  fact  that  the  King  granted  to  a  division 
of  it,  viz.,  the  Star  Chamber,  a  portion  of  his  reserved 
judicial  powers.  This  body  acted  as  the  administra- 
tive superior  of  the  royal  authorities  in  the  localities, 
and  on  appeal  to  it  questions  of  fact  and  expediency, 
as  well  as  of  law,  could  be  considered.^  Formed  in 
the  time  of  Henry  VII.  to  control  the  nobility,  who 
had  grown  turbulent  during  the  wars  of  the  Roses,  it 
served  at  first  to  protect  the  weaker  classes  of  the 

'  Blackstone,  op.  cit.,  iv.,  266;  Palgrave,  op.  cit  ,  57-61,  101-108  ;  Stubbs, 
op.  cit.,  ii.,  603. 


424     CONTROL  OVER  THE  ADMINISTRATION. 

community  against  arbitrary  action  on  the  part  of 
the  administrative  authorities,  which  were  largely  re- 
cruited from  the  nobility  ;  but  it  was  later,  viz.,  under 
the  Stuarts,  used  in  such  a  way  that  it  was  abolished 
on  the  occasion  of  the  revolution.^  In  order  to  offer 
an  appeal  similar  to  the  one  which  disappeared  on 
the  occasion  of  its  abolition,  it  was  provided  in  a 
series  of  statutes  that  the  court  of  quarter  sessions  of 
the  justices  of  the  peace,  which  had  been  theretofore 
mainly  an  administrative  authority  for  the  purpose  of 
county  administration,  should  hear  and  decide  appeals 
from  those  decisions  of  the  justices  of  the  peace,  act- 
ing singly  or  in  petty  and  special  sessions,  which 
affected  property  and  the  right  of  personal  liberty.^ 
There  was  thus  formed  for  the  decision  of  questions 
of  fact  and  expediency,  as  well  as  of  law,  an  adminis- 
trative court  in  each  county,  which  came  finally  to 
have  a  very  wide  power  of  control  over  the  acts  of  sub- 
ordinate administrative  officers.  Its  members  were 
naturally  well  fitted  for  the  exercise  of  this  control, 
since  they  had  a  special  knowledge  of  the  law  they 
had  to  apply  and  of  the  conditions  of  administrative 
action.  For  they  were  engaged  in  other  capacities 
as  administrative  officers. 

Further,  the  commission  of  the  justices  of  the  peace 
enjoined  upon  them  in  difficult  cases  to  take  the  ad- 
vice of  the  royal  courts.  This  came  finally  to  be 
done  by  "  stating  a  case  "  which  was  agreed  upon  by 
the  justices  and  the  parties  before  them,  and  which 
was  then  submitted  to  the  royal  courts,  and  finally 

'  i6  Car.,  I,  c.  lo. 

'  See  Smith,  Practice  at  Quarter  Sessions,  London,  1882,  title,  "  Appeals": 
Gneist,  Das  Englische  Verwaltungsrecht,  1884,  397. 


EXTRAORDINARY  JUDICIAL  REMEDIES.    425 

decided  by  them.'  In  consequence  of  these  facts,  one 
of  the  writs  which  were  originally  issued  by  the  court 
of  king's  bench,  viz.,  the  certiorari,  lost  much  of  its 
earlier  importance  in  England,  and  we  find  that 
statute  after  statute  was  passed  which  prohibited  its 
use  as  a  means  of  appealing  from  the  acts  of  admin- 
istrative officers.^ 

But  up  to  the  coming  to  the  throne  of  the  Orange- 
Stuarts  in  1689,  all  officers,  whether  members  of  the 
courts  or  administrative  ofiicers,  held  their  offices  at 
the  will  of  the  Crown.  In  this  fact,  and  in  the  ex- 
istence in  the  Crown  of  reserved  judicial  powers,  are 
probably  to  be  found  the  reasons  why  the  Crown  per- 
mitted such  a  control  over  the  administration  to  be 
given  to  the  courts.  For  the  Crown  could  exercise  at 
any  time  a  strong  personal  influence  over  the  judges 
of  the  courts  ;  and  if  it  was  found  that  the  administra- 
tion of  the  law  was  becominof  so  technical  as  to  ham- 
per  the  action  of  the  administration,  the  Crown  could 
at  any  time  exercise  its  reserved  powers  and  transfer 
any  matter  to  a  newly  created  and  more  pliable 
authority.^ 

In  1 70 1,  however,  all  this  was  changed.  The  Act 
of  Settlement  made  the  judges  independent  of  the 
royal  power,  and  the  whole  tendency  of  English  de- 
velopment was  to  make  the  justices  of  the  peace  actu- 
ally, though  not  legally  independent  of  the  Crown. 
An  attempt  by  Lord  Somers  during  the  reign  of 
William  III.  to  coerce,  through  the  power  of  dismis- 
sal from  office,  numerous  justices  of  the  peace  raised 

'  Smith,  op.  cit.,  518. 

'  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  406. 

^  This  was  actually  done  in  several  instances,  as  has  been  shown.      Cf.  Pal- 
grave,  op.  cit.,  57-61. 


426     CONTROL  OVER  THE  ADMINISTRATION. 

such  a  storm  of  opposition  that  no  later  ministry  has 
dared  to  make  use  of  such  a  power. 

At  the  same  time  that  the  tenure  of  the  judges  and 
the  justices  became  independent  of  the  Crown  their 
jurisdiction  remained  essentially  the  same,  with  the 
result  that  the  control,  which  before  might  have  been 
regarded  as  merely  a  part  of  the  administrative  con- 
trol, became  absolutely  judicial  in  character — i.  e.,  was 
exercised  by  authorities  independent  of  the  adminis- 
tration which  was  to  be  controlled. 

2.  History  in  the  United  States.  —  Such  was  the 
condition  of  the  control  of  the  courts  over  the  acts  of 
administrative  officers  at  the  time  the  American  colo- 
nies were  founded.  At  first,  indeed,  the  American 
judges,  like  the  English  judges  of  the  same  period, 
were  both  in  tenure  and  action  under  the  control  of 
the  executive  which  they  were  to  control,  but  soon 
their  tenure  was  assured  both  against  the  executive 
and  the  legislature,  so  that  from  a  very  early  time  the 
higher  courts  exercised  a  really  judicial  control  over 
the  actions  of  the  administration.  The  justices  of 
the  peace  did  not,  however,  at  first  become  indepen- 
dent in  tenure  of  the  administration.  And  this  was 
probably  the  reason  why  our  courts  of  sessions  v/ere 
not  able  to  develop  any  very  large  jurisdiction.  The 
appointment  early  in  our  history  of  other  officers  for 
purely  administrative  purposes  relegated  the  justices 
to  the  position  of  inferior  judicial  officers  who  have 
a  police  jurisdiction  and  a  minor  civil  jurisdiction. 
They  were  left  very  few  administrative  duties  to  per- 
form. Notwithstanding  the  fact  that  the  justices  of 
the  peace  in  the  United  States  later  on  obtained  a 
tenure    independent    of    the    administration,   in   that 


EXTRAORDINARY  JUDICIAL  REMEDIES.     427 

they  became  generally  elected  by  the  people  for  a 
fixed  term  of  office,  they  never  got  anything  like 
the  same  jurisdiction  that  was  given  to  their  English 
brothers.  It  is  true  that  in  special  instances  we  find 
appeals  from  the  decisions  of  administrative  officers 
allowed  to  the  courts  of  the  justices  or  their  succes- 
sors, the  county  courts.  But  it  may  be  safely  said 
that  there  has  never  been,  and  is  not  now  in  the 
United  States,  any  at  all  important  system  of  reme- 
dies against  the  acts  of  administrative  officers  except 
such  as  is  to  be  found  in  the  writs  which  the  hio;-her 
courts,  as  the  result  of  their  being  the  heirs  of  the 
Encrlish  court  of  kinof's  bench,  have  the  rip;ht  to  issue. 
We  have  lost  an  important  part  of  the  English  sys- 
tem of  remedies,  particularly  important  because  by  its 
means  a  host  of  questions  of  fact  and  of  expediency 
could  be  reviewed  on  appeal.  With  us  such  questions 
are  often  decided  finally  by  the  administration,  with 
the  result  that  a  most  precious  means  of  protecting 
individual  rights  has  been  lost. 

In  the  United  States,  however,  there  have  been  in 
some  instances  established  special  courts  to  which 
appeal  may  be  taken  from  the  acts  of  administrative 
officers.  These  are  found  particularly  in  the  tax  ad- 
ministration under  the  name  of  tax  appeal  courts  or 
boards  of  review  or  relief.  A  most  notable  body  of 
this  sort  is  the  board  of  general  appraisers  in  the 
national  customs  administration  which  hears  appeals 
from  appraisals  and  classification  decisions. 

///. —  The  prese7it  jurisdictioji  of  the  higher  courts. 

I.  The  special  remedies. — The  most  important  of 
the  special  remedies  developed  by  the  royal  courts 


428     CONTROL  OVER  THE  ADMINISTRATION. 

were  five  in  number,  each  one  corresponding  to  a  par- 
ticular need  which  experience  had  shown  to  exist. 
They  were  the  nia^idamus,  to  force  the  administration 
to  do  what  it  had  illegally  refused  to  do  ;  the  prohibi- 
tion or  the  injunction,  to  prevent  the  administration 
from  proceeding  to  act  where  it  ought  not  to  act ;  the 
certiorari,  to  review  a  decision  made  by  the  adminis- 
tration, to  the  end  that  such  decision  might  be 
annulled  or  amended  ;  the  habeas  corpus  ad  subjicien- 
dum, to  bring  the  matter  of  an  arrest  up  before  the 
courts,  so  that  the  person  arrested  might  be  set  at 
liberty  in  case  the  administration  had  acted  illegally  ; 
and  the  quo  warranto,  to  prevent  the  usurpation  of  a 
franchise  or  privilege.  This  was  later  so  shaped  as  to 
be  made  use  of  to  decide  the  question  who  was  right- 
fully entitled  to  an  office  of  trust  and  profit.  Logi- 
cally there  was  no  need  for  the  development  of  these 
last  two  remedies,  as  the  same  result  might  be  reached 
through  the  use  of  one  of  the  other  remedies.^ 

But  the  questions  of  illegal  arrest  and  imprison- 
ment and  the  usurpation  of  franchise  or  office  were 
believed  to  be  so  important  as  to  make  expedient  the 
adoption  of  special  remedies  for  them.^ 

What  was  originally  a  somewhat  informal  com- 
plaint on  the  part  of  the  individual  that  injustice  had 
been  done,  became  finally,  as  in  the  case  of  all  the 
writs  issued  by  the  royal  courts,  a  demand  for  the 
issue  of  a  special  remedy  or  writ  such  as  the  court  had 

'  Thus  in  New  York  the  habeas  corpus  has,  as  a  result  of  the  provisions 
of  the  Code  of  Civil  Procedure,  been  somewhat  replaced  by  the  certiorari  to  in- 
quire into  the  cause  of  detention.  Sec.  2015  et  seq.;  cf.  Church,  Habeas  Cor- 
pus, 330  et  seq. 

'  The  habeas  corpus  can  be  used  only  to  relieve  from  actual  physical  restraint 
as  the  other  remedies  are  sufficient  to  nullify  the  illegal  order  upon  which  the 
restraint  is  attempted  to  be  justified.     Wales  vs.  Whitney,  114  U.  S.,  564. 


EXTRA  OR  DINAR  Y  JUDICIAL  REMEDIES.    4  2  9 

fallen  into  the  habit  of  issuinor.  It  was  but  a  short 
step  under  such  conditions  for  the  courts  to  hold  that 
the  demand  for  a  special  remedy  did  not  justify  the 
court  in  issuing  any  other  writ  than  the  one  demanded. 
While  the  appeal  to  the  court  might  be  made  against 
any  act  of  the  administration  and  the  jurisdiction  of 
the  courts  was  not  enumerated  in  the  sense  that  a 
special  statutory  authorization  was  necessary  in  each 
case  of  its  exercise,  the  remedies  which  could  be 
asked  for  in  particular  cases  were  gradually  enumer- 
ated in  the  decisions  of  the  courts.  A  simple  com- 
plaint of  the  denial  of  justice  was  finally  insufficient.^ 
The  decisions  of  the  courts  have  thus  become  quite 
technical  in  their  character  and  hold  that  a  writ  which 
may  be  properly  made  use  of  for  one  purpose  may  not 
be  made  use  of  for  another.  Thus  the  mandamus  is 
not  the  proper  writ  to  try  the  title  to  office.^  Neither 
the  mandamus  nor  the  injunction  is  the  proper  remedy 
to  review  the  decision  of  a  subordinate  administra- 
tive authority  ;  this  is  to  be  done  by  the  certiorari? 
It  has  therefore  become  necessary  for  the  applicant 
for  the  exercise  of  the  jurisdiction  of  the  higher  courts 
to  make  it  certain,  before  he  applies  for  the  issue  of 
any  particular  writ,  that  he  is  asking  for  the  proper 
remedy.  For,  if  he  does  not,  he  will  be  non-suited. 
2.  Prerogative  character  of  the  writs. — In  the  second 

'  Viner's  Abridgement,  2d  ed.,  xv.,  185,  citing  Barnwell's  Chancery  Rep., 
377,  anno  1740,  where  the  plaintiff  asked  for  a  bill  in  chancery  and  was  told  to 
ask  for  a  mandamus  ;  also  p.  ■201,  citing  Queen  vs.  Hungerford,  ri  Mod.  Rep., 
142,  where  quo  warranto  was  asked  for  and  the  applicant  was  told  that  he 
could  have  a  mandamus.  See  also  p.  206,  citing  12  Mod.  196;  and  p,  208, 
citing  II  Mod.,  254. 

*  People  vs.  Corporation  of  New  York,  3  Johnson's  Cases,  79. 

^  Mowers  vs.  Smedley  et  al.,  6  Johnson's  Chancery,  2S;  People  vs.  Police 
Commissioners,  43  Howard's  Pr.  (N.  Y.),  385. 


430     CONTROL  OVER  THE  ADMINISTRATION. 

place,  owing  to  the  fact  that  these  writs  were  de- 
veloped as  a  result  of  the  exercise  of  the  reserved  ju- 
dicial powers  of  the  Crown  they  have  never  become 
writs  ex  debito  justitice — that  is,  the  individual  may 
not  have  them  merely  for  the  asking,  as  is  the  case 
with  writs  beginning  ordinary  actions.  The  courts 
may  refuse  in  their  discretion  to  issue  them.^  From 
a  very  early  time,  however,  on  account  of  the  im- 
portance of  maintaining  in  its  integrity  the  right  of 
personal  liberty,  the  habeas  corpus  has  been  regarded 
as  a  writ  ex  debito  justitics — i.e.,  to  be  issued  on  prob- 
able cause  shown  ^ ;  and  the  Habeas  Corpus  Act,^ 
provided  that  the  judges  should  issue  it  under  a  pen- 
alty for  refusal.  With  this  exception  the  rule  was 
for  a  long  time  that  these  writs  were,  as  the  law  ex- 
pressed it,  prerogative  in  character.  The  tendency 
of  the  more  modern  decisions  as  well  as  of  the  stat- 
utes passed  on  this  subject  has  been,  however,  to  as- 
similate these  writs  more  and  more  to  ordinary  actions.* 
In  some  cases,  too,  the  writs  have  been  abolished  al- 
together and  ordinary  actions  substituted  for  them. 
This  is  true  in  New  York  of  the  quo  warranto,  and 
the  information  in  the  nature  of  a  quo  warranto  which 
soon  took  its  place.  Here,  however,  the  individual, 
before  the  action  can  be  brought,  must  get  the  attor- 
ney-general to  move,  who,  it  would  seem,  has  the  mon- 
opoly of  the  action  ;  and  it  has  been  held  that  the  courts 
may  not  force  the  attorney-general  to  bring  suchaction/ 

'  See  Viner,  op.  cit.,  sub  verba  Certiorari,  iv.,  p.  345,  citing  8  Mod.,  331;  also 
King  vs.  Barker    i,  Wm.  Blackstone,  352. 
'  Church,  op,  cit.,  94  et  seq. 
^  31  Car.  II.,  cap.  2,  x. ;  Church,  op.  cit.,  109. 
■•  See  Kentucky  z's.  Dennison,  24  How.,  U.  .S.,  66. 
'Code  of  Civil  Procedure,  §§  194S-1956;  People  vs.  Fairchild,  67  N.  Y.,  334. 


EXTRA ORDINAR  Y  J  UJDICIAL  REMEDIES.    43 1 

But  notwithstanding  the  Hmitation  of  their  preroga- 
tive character  the  courts  have  large  discretion  in  grant- 
ing or  refusing  the  appHcation  for  the  issue  of  most 
of  the  writs.  In  some  cases  the  prehminary  decision 
refusing  the  issue  of  the  writs  is  not  appealable  even  ^ ; 
and  in  no  case  will  they  issue  where  there  is  any  other 
adequate  remedy.^  What  is  an  adequate  remedy  is  to 
be  decided  by  the  courts.  They  have  held  that  a  suit 
for  damages  against  an  official  is  not  an  adequate 
remedy,^  but  have  intimated,  at  any  rate,  that  a  suit 
for  damages  against  a  municipal  corporation,  where 
damages  are  in  the  nature  of  things  a  perfectly  com- 
petent means  of  relief,  is  an  adequate  remedy.*  They 
have  also  held  that  the  remedy  by  indictment  of  an 
officer  is  not  an  adequate  remedy.^ 

3.  The  purpose  of  the  writs. — The  purpose  of  the 
writs  is  twofold.  In  the  first  place,  they  are  issued 
mainly  with  the  intention  of  protecting  private  rights  ; 
in  the  second  place,  some  of  them  may  be  made  use 
of  also  for  the  purpose  of  the  maintenance  of  the  law 
regardless  of  the  fact  whether  in  the  particular  case  a 
private  right  is  attacked  or  not.  Thus  in  the  case  of 
the  certiorari  it  has  been  held  that  this  writ  may  not 
be  made  use  of  simply  for  the  maintenance  of  the  law, 

'  See  People  vs.  Stillwell,  19  N.  Y.,  531  ;  County  Commissioners  vs.  Jack- 
sonville, 36  Fla.,  196;  People  vs.  Commissioners,  82  N.  Y.,  506;  People  vs. 
Westbrook,  89  N.  Y.,  152  ;    Sage  vs.  FiSeld,  68  Wis.,  546. 

*Wampler  vs.  State,  148  Ind.,  557  ;  People  vs.  Board  of  Apportionment, 
64  N.  v.,  627  ;  People  vs.  Betts,  55  N.  Y.,  600 ;  High,  Injunction,  2d  ed., 
§28. 

'Fremont  vs.  Crippen,  10  Cal.,  211. 

'' People  vs.  Green,  58  N.  Y.,  295. 

*  People  vs.  Mayor  of  New  York,  10  Wendell,  393  ;  In  re  Trenton  Water 
Power  Co.,  Spencer,  N.  J.,  659  ;  Fremont  vs.  Crippen,  10  Cal.,  211  ;  see  also 
Mechem,  Lcno  0/  Public  Officers,  §  941,  note  3. 


432     CONTROL  OVER   THE  ADAflNISTRATION. 

that  no  one  may  apply  for  it  unless  he  has  some  par- 
ticular interest  in  its  issue  which  is  greater  than  that 
possessed  by  the  ordinary  citizen.^  The  courts,  how- 
ever, have  held  with  regard  to  the  quo  warranto  that 
it  may  be  issued  on  the  demand  of  any  citizen  of  re- 
sponsibility^ ;  and  the  better  rule  would  seem  to  be 
that  in  matters  of  public  concern  any  citizen  or  tax- 
payer may  apply  for  the  mandamus^  Further,  in  the 
proper  cases  the  offtcers  of  the  administration  may 
apply  to  the  courts  to  force  by  these  writs  inferior 
officers  to  perform  their  duties/  Finally,  as  a  result 
of  the  Habeas  Corpus  Act  passed  in  the  reign  of 
Charles  II.,  any  one  may  apply  for  the  writ  of  habeas 
corpus  whether  he  has  any  particular  interest  or  not — 
that  is,  whether  his  own  private  rights  are  involved 
or  not.^  This  rule  has  been  very  generally  adopted 
into  the  law  of  the  United  States  and  is  undoubtedly 
due  to  the  necessity  of  affording  as  complete  a  pro- 
tection as  possible  to  the  right  of  personal  liberty — to 
the  necessity  of  the  maintenance  of  the  law  on  this 
subject. 

4.  Questions  considered  on  the  writs. — As  a  general 
rule  the  courts  may  not  on  these  writs  consider  or 
review  the  questions  of  fact  or  expediency  which  have 

'Davis  vs.  County  Commissioners,  153  Mass.,  218;  People  vs.  Leavitt,  41 
Mich.,  470  ;  People  vs.  Walter,  68  N.  Y.,  403  ;  People  vs.  Phillips,  67  N.  Y., 
582  ;  State  vs.  Lamberton,  37  Minn.,  362  ;  Granville  vs.  County  Commissioners, 
97  Mass.,  193. 

2  Commonwealth  vs.  Meeser,  44  Pa. St.,  341  ;  State  vs.  Hammer,  42  N.  J.  L., 
435  ;   State  vs.  Martin,  46  Conn.,  479  ;   see  People  vs.  Londoner,  13  Col.,  303. 

*  People  vs.  Collins,  19  Wendell,  56;  People  vs.  Halsey,  37  N.  Y.,  344  ,• 
State  vs.  Railway  Co.,  19  Wash.,  51S.  As  to  injunction  to  restrain  improper 
expenditure  of  public  money,  see  Crampton  vs.  Zabriskie,  loi  U.  S.,  601. 

*  People  vs.  Canal  Board,  55  N.  Y.,  390  ;  People  vs.  Trustees,  54  Barb.^ 
N.  Y.,  480  ;  Attorney-General  vs.  Boston,  123  Mass.,  460. 

*3i  Car.  II.,  cap.  2,  x.;  Church,  op.  cit.,  93. 


EXTRAORDINARY  JUDICIAL  REMEDIES.    433 

been  decided  by  the  administrative  authorities.  This 
is  one  of  the  most  important  general  principles  affect- 
ing the  use  of  the  writs  and  lies  at  the  basis  of  nearly 
all  the  cases.^  The  principle  is  applicable  whatever 
be  the  rank  or  character  of  the  officer  who  is  to  be  con- 
trolled. Be  he  never  so  humble,  if  he  have  discretion, 
that  discretion  he  is  to  exercise  free  from  any  control ; 
be  he  never  so  influential,  he  must  act  in  accordance 
with  the  law.  Thus  the  decision  by  a  board  of  local 
highway  commissioners  as  to  the  route  to  be  taken  by 
a  highway  may  not  be  reviewed  by  the  courts,^  while 
the  refusal  of  the  United  States  secretary  of  the  in- 
terior to  issue  a  patent  for  lands  after  all  questions  of 
discretion  had  been  decided  in  favor  of  the  applicant 
has  been  held  to  be  the  violation  of  a  ministerial 
duty  and  may  be  overcome  by  application  to  the 
court.^ 

This  rule  is,  however,  subject  to  one  or  two  excep- 
tions. The  questions  of  fact  which  have  been 
decided  by  an  administrative  authority  in  deciding  as 
to  the  title  to  office  may  be  reviewed  by  the  courts 
on  either  mandamus  or  quo  warranto}  Further,  the 
courts  of  some  states  will  not  permit  administrative 
officers  so  to  make  use  of  their  discretion  as  to  make 
a  decision  which   is  absolutely   unsupported  by  the 

'  United  States  vs.  Seaman,  17  Howard,  U.  S.,  225  ;  Gaines  vs.  Thompson, 
7  Wallace,  347;  Ex  parte  Hurn,  92  Ala.,  102:  Burch  vs.  Hardwicke,  23 
Grattan,  Va.,  51  ;  People  vs.  French,  no  N.  Y.,  494;  Harrison  vs.  New 
Orleans,  33  La.  Ann.,  222  ;  Davis  vs.  Mayor,  i  Duer  (N.  Y.),  451.  An  im- 
portant exception  is  made  in  the  case  of  the  habeas  corpus^  see  Church,  op.  cit., 
ch.  xiii.;  see  also  In  re  Martin,  5  Blatchford,  303. 

'^  People  vs.  Collins,  19  Wendell,  56. 

^United  States  vs.  Schurz,  io2  U.  S.,  378.  See  also  People  fJ.  Beach,  19 
Hun.,  N.  Y.,  259  ;  and  Kendall  vs.  United  States,  12  Peters,  524. 

^  State  vs.  Garesche,  65  Missouri,  480;  People  vs.  Pease,  27  N.  Y.,  45;  Peo- 
ple vs.  Van  Cleve,  i  Mich.,  362. 
28 


434     CONTROL  OVER  THE  ADMINISTRATION. 

evidence,  but  will  on  certiorari  quash  such  decision.' 
The  courts  of  some  states  also  hold  that  where  a 
statute  provides  that  an  officer  may  be  removed  from 
office  for  cause  only,  they  have  the  right  to  control 
the  discretion  of  the  removing  officer  in  deciding 
what  is  cause.^ 

Finally,  in  several  instances  special  statutes  have 
been  passed  which  expressly  give  to  the  courts  a  con- 
trol over  the  discretion  of  the  administration.  Thus 
the  present  customs  administrative  act  gives  to  the 
circuit  courts  of  the  United  States  the  power,  on 
a  sort  of  statutory  certiorari,  to  reverse  or  amend 
the  decisions  even  of  fact  of  the  board  of  general 
appraisers  as  to  the  classification  of  articles  for  duty 
under  the  tariff  acts.^  Thus  also  the  legislature  of 
New  York  has  provided  *  that  in  case  any  person  is 
aggrieved  by  the  decision  of  the  assessors  as  to  the 
value  of  his  property  for  the  purpose  of  taxation,  he 
may  have  a  certiorari  on  which  the  courts  may 
reverse  or  amend  the  decision  of  the  assessors  on  the 
ground  both  of  illegality  and  of  unfairness  or  dispro- 
portionality.^ 

Finally,  for  political  reasons  the  courts  have  very 
generally  laid  down  the  rule  that  they  will  not  exer- 
cise their  jurisdiction  where  it  brings  them  into  actual 

'  People  vs.  Board  of  Police,  39  N.  Y. ,  506;  People  ex  rel.  Hogan  vs.  French, 
lig  N.  Y.,  493;  People  ex  rel.  McAleer  vs.  French,  ibid.^  502. 

*  Ibid.  See  also  Lawrence,  "  Police  Removals  and  the  Courts,"  P.  S.  Q., 
March,  1905. 

^  U.  S.  Law  of  June  10,  1890,  c.  407,  §  15.     Here  the  certiorari  is  probably 
a  remedy  ex  debito  justiticB. 
^  L.  1880,  c.  269. 

*  See  also  New  York  Code  of  Civil  Procedure,  §  2140,  which  provides  that 
the  court  in  deciding  on  the  writ  of  certiorari  may  consider  the  weight  of  the 
evidence. 


EXTRAORDINARY  JUDICIAL  REMEDIES.    435 

conflict  with  the  chief  executive.^  The  rule  is  clear 
as  to  the  President  of  the  United  States,  but  is  not 
so  clear  as  to  the  governors  of  the  various  common- 
wealths.^ Most  of  the  cases  where  the  ma?idamus  has 
been  issued  to  the  governor  have  been  friendly  suits 
where  the  governor  has  not  objected  to  the  jurisdic- 
tion ;  indeed  one  of  them  holds  expressly  that  the 
court  will  issue  the  writ  of  manda7iius  to  the  governor 
if  he  does  not  object.^  Where,  however,  the  courts 
may  issue  the  writs  without  coming  into  direct  con- 
flict with  the  executive  they  seem  to  have  no  objec- 
tion to  issuing  them,  even  if  they  will  be  forced  on 
the  return  to  the  writs  to  annul  the  acts  of  the  execu- 
tive/ Thus  they  have  issued  a  habeas  corpus  to 
consider  the  validity  of  an  act  of  the  governor  in 
the  extradition  of  a  fugitive  from  justice,  and  have 
decided  that  such  an  act  was  not  in  accordance  with 
the  law.^  In  the  case  of  ex  parte  Merryman,  a  case 
of  habeas  corpus,  however,  the  writ  absolutely  failed 
of  its  purpose  because  the  officer  to  whom  it  was 
issued  was  supported  in  his  action  by  the  President, 
and  the  court  refused  to  take  any  further  step  on 
account  of  the  danofer  of  a  conflict  with  the  executive. 

'  State  of  Miss.  vs.  Johnson,  4  Wall.,  475;  Grier  vs.  Taylor,  4  McCord,  206; 
People  vs.  Morton,  156  N.  Y.  136;  High,  Extraordinary  Legal  Remedies,  3d 
ed.,  §  i\%  et  seq.  and  cases  cited. 

'  As  to  the  mandamus,  see  Cotton  vs.  Ellis,  7  Jones,  N.  C,  545;  State  vs. 
Chase,  5  Ohio  St.,  528. 

'  People  vs.  Bissell,  19  111.,  229.  As  to  the  quo  warranto,  see  Attorney- 
General  vs.  Barstow,  4  Wis.,  567;  State  vs.  Bulkley,  61  Conn.,  287.  The  rule 
here  is  different  on  the  theory  that  the  courts  issue  the  quo  warranto  not  to 
the  governor  but  merely  to  one  claiming  the  right  to  act  as  governor. 

*  Dullam  vs.  Wilson,  53  Mich.,  392;  People  vs.  Piatt,  50  Hun.,  454. 

*  People  vs.  Curtis,  50  N.  Y.,  321;  People  vs.  Brady,  56  N.  Y.,  182;  see  also 
Ex  parte  Merryman,  Taney's  Decisions,  246;  Ex  parte  Field,  5  Blatchford, 

63. 


436     CONTROL  OVER   THE  ADMINISTRATION. 

Some  of  the  state  courts  have  endeavored  to  extend 
this  exemption  from  the  operation  of  the  jurisdiction 
of  the  courts  to  the  heads  of  the  departments.  But 
this  is  not  the  best  rule  in  the  United  States,  and  is 
in  conflict  with  the  decisions  of  the  United  Statiis 
Supreme  Court.^ 

5.  Distinction  between  legal  and  equitable  remedies.  — 
Besides  these  general  rules,  which  are  applicable  in  a 
general  way  to  all  the  remedies  by  which  the  jurisdic- 
tion of  the  courts  is  exercised,  there  are  a  number  of 
special  rules  with  regard  to  each  one  of  the  remedies. 
Thus  there  is  quite  a  distinction  between  the  extraor- 
dinary legal  and  the  equitable  remedies.  While  the 
former  are  almost  always  issued  where  the  act  of 
the  administration  is  absolutely  illegal  in  character, 
the  latter  may  be  issued  only  in  those  cases  where  the 
applicant  for  the  remedy  can  bring  his  case  under  one 
of  the  recognized  heads  of  equitable  jurisdiction,  such 
as  that  the  act  complained  of  is  a  breach  of  trust,  will 
result  in  irreparable  mischief  to  real  property,  or  will 
lead  to  a  multiplicity  of  suits.^  Further,  if  we  com- 
pare the  injunction  with  the  prohibition,  whose  pur- 
poses are  largely  the  same,  we  find  that  the  injunction 
appears  to  be,  in  the  United  States  at  any  rate,  the 
more  popular  remedy.  This  is  due  to  the  fact  that 
while  the  prohibition  may  be  made  use  of  to  prevent 
the  commission  of  only  judicial  acts  by  administra- 
tive officers  ^  the  injunction  may  be  made  use  of  to 
restrain  almost  any  kind  of  administrative  action.   In- 

'  See  United  States  vs.  Schurz,  102  U.  S.,  378. 

''Green  vs.  Mumford,  5  R.  I.,  472,  475;  Dows  vs.  Chicago,  11  Wall.,  108; 
Hilliard,  Injunction,  3d  ed.,  486. 

'People  vs.  Supervisors,  i  Hill,  N.  Y.,  195;  Speed  vs.  Common  Council,  98 
Mich.,  360. 


EXTRAORDINARY  JUDICIAL  REMEDIES.    437 

deed,  in  some  of  the  states  the  courts  have  made  use 
of  the  preHminary  injunction  with  such  freedom  as  to 
paralyze  almost  completely  the  action  of  the  adminis- 
tration. Thus  in  New  York  City  police  officers 
have  in  several  instances  been  by  the  injunction 
restrained  from  preventing  palpable  violations  of  the 
law.  ^ 

6.  Jurisdiction  of  the  United  States  courts. — In  the 
case  of  the  state  courts,  the  general  rule  is  that  the 
jurisdiction  to  issue  these  extraordinary  legal  remedies 
is  possessed  by  all  those  courts  which  have  inherited 
the  jurisdiction  of  the  court  of  king's  bench — and 
most  courts  of  general  common-law  jurisdiction  have 
inherited  such  jurisdiction.  This  rule  prevents 
courts  with  a  mere  appellate  jurisdiction  from  issu- 
ing these  special  writs "  and  results  also  in  the  fact 
that  the  equitable  remedies  may  be  issued  only  by 
courts  possessing  equity  jurisdiction.  The  jurisdic- 
tion of  the  United  States  courts  is  not,  however, 
governed  by  these  general  principles,  but  is  so  fixed  in 
detail  by  the  constitution  and  the  statutes  that  it  be- 
comes necessary  to  have  reference  to  these  and  to  the 
decisions  made  in  interpretation  of  them  in  order  to 
understand  what  exactly  is  the  jurisdiction  of  these 
courts.  It  has  been  held  in  a  series  of  decisions  that 
the  United  States  courts  generally  have  no  power  to 
issue  the  mandamus  or  certiorari  except  to  aid  an 
already  acquired  jurisdiction  :  the  supreme  court,  be- 
cause  the   constitution   does  not  include  this  power 

'  A  good  collection  of  these  cases  was  made  up  in  an  editorial  of  the  New 
York  Times  of  April  23,  1886, 

'■'Morgan  vs.  Register,  Hardin  (Ky.),  6og;  State  vs.  Biddle,  36  Ind.,  13S; 
State  vs.  Ashley,  i  Ark.,  513;  Memphis  vs.  Halsey,  12  Heiskell,  Tenn.,  210; 
see  also  Perry  vs.  Shepherd,  78  N.  C,  83. 


438     CONTROL  OVER  THE  ADMINISTRATION. 

within  the  original  jurisdiction  given  to  that  court  \ 
the  circuit  and  district  courts,  because  such  power  has 
not  been  granted  to  them  by  the  judiciary  act."  The 
supreme  court  of  the  District  of  Columbia  may, 
however,  as  a  result  of  the  fact  that  it  has  inherited 
for  the  territory  of  the  District  of  Columbia  the  juris- 
diction of  the  court  of  king's  bench,  issue  the  man- 
damus^ and,  probably  as  a  result  of  the  application  of 
the  same  principle,  the  writ  of  certiorari  2X^0.  It  will 
be  remembered,  however,  that  the  national  customs 
administrative  act  gives  the  power  to  the  circuit 
courts  to  issue  a  sort  of  statutory  certiorari  to  the 
board  of  general  appraisers  in  customs  matters. 
Where,  however,  it  is  necessary  to  issue  such  writs  in 
order  to  aid  a  jurisdiction  already  in  other  ways 
acquired,  the  United  States  courts  may  issue  the 
mandamtis,  and,  as  a  result  of  the  application  of  the 
same  principle,  the  certiorari}  In  some  of  the  cases 
laying  down  this  rule,  a  7iia7idamus  was  issued  by  a 
circuit  court  to  a  municipal  corporation  to  compel  it  to 
provide  for  the  payment  of  a  judgment  obtained  in  the 
court  against  such  corporation.  Further,  as  a  result 
of  the  provisions  of  the  United  States  constitution,  the 
supreme  court,  it  would  seem,  has  such  power  in 
cases  where  a  state  or  a  foreign  diplomatic  or  consu- 
lar officer  is  a  party. ^  The  rules  are  about  the  same 
with  regard  to  the  prohibition.     The  supreme  court 

'  Marbury  vs.  Madison,  i  Cranch,  137;  In  re  Kaine,  14  Howard,  103;  Ex 
parte  Vallandigham,  i  Wallace,  243. 

'  Mclntire  vs.  Wood,  7  Cranch,  504;  United  States  vs.  Smallwood,  i 
Chicago  Legal  News,  321;  Ex  parte  Van  Orden,  3  Blatchford,  166. 

^  Kendall  vs.  United  States,  12  Peters,  524. 

*  Lansing  z/j.  County  Treasurer,  i  Dillon,  C.  C,  522;  see  also  Rees  z/j.  City 
ofWatertown,  19  Wall.,  107. 

'Const.,  art.  iii.,  sec.  2,  par.  3;  Commonwealth  vs.  Dennison,  24  How.,  66. 


EXTRAORDINARY  JUDICIAL  REMEDIES.    439 

has  no  right  to  issue  a  prohibition  except  in  admiralty 
matters,^  and  it  is  very  doubtful  whether  the  circuit 
courts  may  issue  a  prohibition  at  all.^ 

The  rules  are,  however,  more  liberal  with  regard  to 
the  injunction,  the  habeas  corpus,  and  the  quo  war- 
ranto. The  power  to  issue  the  habeas  corpus,  even  to 
the  administrative  authorities  of  the  commonwealths, 
is  given  to  all  the  United  States  courts,  except  the 
supreme  court.^  They  have  also  the  right  to  issue 
the  quo  warranto  when  the  question  at  issue  concerns 
the  denial  of  the  right  to  vote  on  account  of  race, 
color,  or  previous  condition  of  servitude  for  any  officer 
other  than  presidential  elector  and  legislative  officers, 
or  concerns  the  disqualification  for  other  than  legis- 
lative office  resulting  from  the  violation  of  the  official 
oath,  by  engaging  in  insurrection  or  rebellion  against 
the  United  States  or  giving  aid  and  comfort  to  its 
enemies.^  The  supreme  court  may  not  issue  the  in- 
junction except  to  aid  an  already  acquired  jurisdic- 
tion, and  except  in  cases  where  a  state  or  a  foreign 
diplomatic  or  consular  officer  is  a  party.^  The  other 
United  States  courts  have  a  large  power  to  apply  the 
equitable  remedies  in  proper  cases  against  the  action 
of  both  national  and  state  officers.^  Congress  has, 
however,  forbidden  the  courts  of  the  United  States  to 
make  use  of  the  injunction  to  restrain  the  collection  of 
taxes  by  the  officers  of  the  United  States  government.' 

'  U.  S.  Rev.  Statutes,  sec.  688;  United  States  vs.  Peters,  3  Dallas,  121; 
Ex  parte  Christy,  3  Howard,  292;  Ex  parte  Phenix  Insurance  Co.,  118  U.  S., 
6ro;  see  also  United  States  vs.  Hoffman,  4  Wall.,  158. 

^  U.  S.  Rev.  Stats.,  sec.  716;  In  re  Binninger,  7  Blatchford,  159. 

^  U.  S.  Rev.  Stats.,  sees.  751-766  ;  Ex  parte  Barry,  2  How.,  65. 

^Amendment  XIV.,  sec.  3;   U.  S.  Rev.  Stats.,  sec.  563,  par.  13,  14. 

*  U.  S.  Const.,  art.  iii.,  sec.  2.,  par.  2. 

^U.  S.  Rev.  Stats.,  sec.  629,  par.  2.  "^ Ibid.,  sec.  3224 


440     CONTROL  OVER  THE  ADMINISTRATION. 

These  rules  apply  as  well  to  the  issue  of  these 
remedies  against  state  officers  as  to  their  issue  against 
the  officers  of  the  United  States  government.  If  the 
United  States  courts  have  not  an  already  acquired 
jurisdiction  in  the  cases  where  this  is  necessary,  they 
may  not  issue  the  writs  except  in  the  cases  provided  for 
by  the  constitution  or  statutes.  If  they  have  they  may.^ 
On  the  other  hand,  the  courts  of  the  states  may  never 
exercise  the  jurisdiction  which  they  may  have  over 
state  officers  in  order  to  control  the  actions  of  the 
officers  of  the  national  ofovernment.  For  the  United 
States  courts  have  exclusive  jurisdiction  of  all  cases 
arising  under  the  constitution  and  laws  of  the  United 
States.^  The  result  is  that  the  officers  of  the  national 
government  are  not  nearly  so  subject  to  the  jurisdic- 
tion of  the  courts  as  are  the  state  officers.  But  this 
control  is  not  nearly  so  necessary  as  in  the  state 
administration.  For  the  administrative  control  is  so 
strong  in  the  United  States  administrative  system 
that  the  mistakes  of  subordinate  administrative  offi- 
cers are  quite  easily  corrected  on  appeal  to  higher 
administrative  officers.^ 


IV. — Special  and  statutoiy  jurisdiction  of  the  lower 

courts. 

The  special  and  technical  character  of  the  common- 
law  jurisdiction  of  the  courts  has  made  it  seem  advis- 
able in  certain  rather  exceptional  cases,  where  no  one 

'  Graham  vs.  Norton,  15  Wallace,  427;  Commonwealth  vs.  Dennison,  24 
Howard,  66, 

*  U.  S.  Const.,  art.  iii.,  sec.  2.,  par.  i;  Brewer  z^j.  Kidd,23  Mich.,  440;  Able- 
man  vs.  Booth  and  United  States  vs.  Booth,  21  How.,  506;  Tarble's  Case,  13 
Wall,  397. 

*  Butterworth  vs.  Hoe,  112  U.  S.,  50,  57. 


EXTRAORDINARY  JUDICIAL  REMEDIES.    441 

of  the  writs  affords  the  proper  relief,  to  provide  by 
statute  for  special  appeals,  generally  to  the  lower 
courts,  from  the  decisions  of  administrative  officers, 
when  either  questions  of  law  alone  or  questions  of 
both  law  and  fact  may  be  considered.  It  has  been 
shown  that  after  the  abolition  of  the  court  of  star 
chamber,  which  served  as  an  appellate  court  on  ques- 
tions of  both  law  and  fact  for  the  decisions  of  the 
subordinate  English  administrative  officers,  it  was 
provided  in  a  series  of  statutes  that  appeals  should 
thereafter  be  taken  to  the  court  of  quarter  sessions  of 
the  county,  which  was  composed  of  the  justices  of 
the  peace  of  the  county. 

While  in  the  United  States  the  statutes  erantinor  a 
power  of  appealing  from  the  decisions  of  the  adminis- 
trative officers  to  the  courts  of  quarter  sessions  or 
county  courts,  which  have  largely  taken  their  place, 
are  not  nearly  so  numerous  as  in  England,  still  we  do 
find  not  a  few  instances  of  them.  Thus  in  New  York 
any  one  interested  may  appeal  to  the  county  court 
from  the  decision  of  the  superintendent  of  the  poor 
as  to  the  settlement  of  a  poor  person.^  An  instance 
of  a  similar  power  of  appeal,  though  in  this  case  the 
appeal  does  not  go  to  the  county  court,  is  the  power 
given  to  any  individual,  who  has  been  refused  a  patent 
for  an  invention  by  the  commissioner  of  patents,  to 
appeal  from  this  decision  to  the  supreme  court  of  the 
District  of  Columbia.^ 

'  L.  1S72,  c.  38. 

'  U.  S.  Rev.  Stats.,  sec.  4911.      This  is  in  place  of  the  administrative  appeal 
to  the  head  of  department ;  Butterworth  vs.  Hoe,  112  U.  S.,  50,  57. 


DIVISION  III.— THE  LEGISLATIVE  CONTROL. 


CHAPTER    I. 


\ 


HISTORY    OF    THE    LEGISLATIVE    CONTROL. 


The  history  of  the  legislative  or  parliamentary  con- 
trol must  be  studied  In  the  history  of  English  Institu- 
tions, since  England  developed  the  modern  legislative 
body.  One  of  the  most  Important  functions  of  Par- 
liament was  from  the  earliest  time  to  redress  griev- 
ances. Even  so  late  as  the  latter  part  of  the  middle 
ages,  much  of  the  time  of  Parliament  was  taken  up  In 
the  discharge  of  this  function.  The  grievances  which 
Parliament  sought  to  redress  not  only  were  notable 
abuses  In  the  government,  but  were  found  in  the  most 
minute  details  of  the  government.  Indeed  at  first 
the  main  means  of  controlling  the  administration,  not 
only  in  the  interest  of  society  at  large  but  also  In 
that  of  individual  rights,  was  to  be  found  In  this 
parliamentary  control. 

As  a  result  of  the  government  of  the  Stuart  kings  two 
facts,  however,  became  apparent.  The  first  was,  that 
the  party  conflicts  which  are  so  apt  to  arise  In  Parlia- 
ment made  it  an  Improper  authority  for  the  exercise 
of  such  an  extended  control ;  the  second  was,  that  the 
parliamentary  control  was  altogether  insufficient  for 
the  protection  of  Individual  rights  against  an  arbitrary 
and  corrupted  administration.     These  defects  in  the 

442 


HISTORY  OF  THE  LEGISLATIVE  CONTROL.  443 

system  of  control  over  the  administration  were  reme- 
died by  increasing  the  independence  of  the  local 
organs  and  of  the  courts,  and  the  consequent  increase 
of  the  judicial  control  over  the  administration.^  The 
parliamentary  or  legislative  control  was  in  this  way 
reduced  to  the  position  of  a  subsidiary  but  at  the  same 
time  a  necessary  control.  The  general  redress  of 
grievances  was  therefore  made  by  the  courts,  and  Par- 
liament redressed  only  grievances  of  an  extraordinary 
character.  Petitions  for  redress  of  grievances  from 
this  time  on  took  on  the  character  more  of  proposi- 
tions de  lege  ferenda. 

At  the  same  time  Parliament  began  to  increase  its 
control  over  the  administration  in  other  directions. 
Thus  it  began  to  specify  in  its  appropriation  acts  the 
purposes  for  which  money  might  be  spent  by  the  ad- 
ministration. The  spending  of  money  had  been  before 
1676,  altogether  an  affair  of  the  royal  prerogative  with 
which  the  Parliament  had  not  interfered.  But  it  was 
led  to  assume  this  power  as  a  result  of  the  wasteful 
administration  of  the  kings,  and  as  a  result  of  the  fact 
that  through  this  power  it  could  exercise  a  very  efficient 
control  over  the  general  policy  of  the  executive. 

Further,  in  order  that  this  power  might  be  of  any 
value,  it  was  necessary  for  the  Parliament  to  assure 
itself  in  some  way  that  the  administration  had  con- 
formed in  its  actions  to  the  provisions  of  the  appro- 
priation acts.  It  therefore,  somewhat  later,  began  to 
examine  the  accounts  of  the  administration.  Aeain, 
while  Parliament  still  retained  its  former  power  of 
impeaching  the  ministers  of  the  Crown  in  case  of  their 
continued  and  wilful  disobedience  of  the  resolutions 

'  Gneist,  Das  Englische  Verwaltiingsrecht,  1884,  345. 


444     CONTROL  OVER  THE  ADMINISTRATION. 

of  Parliament  and  violation  of  the  law  of  the  land,  it 
added  very  much  to  its  powers  of  control  by  insisting 
that  the  ministers  of  the  Crown  should  be  such  per- 
sons as  could  obtain  and  retain  the  confidence  of  Par- 
liament. The  result  of  the  development  of  this 
principle  of  the  responsibility  of  the  ministers  was  a 
further  increase  of  the  control  of  Parliament,  which  is 
not  capable  of  exact  juristic  determination,  and  which 
has  practically  resulted  in  the  abandonment  of  the 
power  of  impeachment. 

The  formerly  all-embracing-  parliamentary  control 
was  reduced  thus  practically  to  the  exercise  of  three 
powers  which  are  largely  subsidiary  to  the  other 
methods  of  control.  These  powers  are :  first,  the 
power  to  remedy  special  abuses  in  the  interest  of  the 
social  well-being  by  entertaining  propositions  de  lege 
ferenda  and  by  investigating  the  conduct  of  the  ad- 
ministration ;  second,  the  power  of  controlling  the 
general  policy  of  the  administration  through  the  vot- 
ing of  the  appropriations  and  the  examination  of  the 
accounts  of  the  administration  after  the  execution  of 
the  budget,  in  order  to  see  whether  the  provisions  of 
the  appropriation  acts  have  been  observed  ;  and  third, 
in  the  extraordinary  power  of  impeachment,  to  be 
made  use  of  only  when  all  else  fails  to  bring  the  ad- 
ministration within  the  bounds  of  the  law.  This 
power  is  supplemented  by  the  principle  of  the  respon- 
sibility of  the  ministers  to  Parliament,  and  is  largely 
replaced  in  actual  practice  by  that  principle. 

Such  was  the  form  of  the  parliamentary  or  legis- 
lative control  in  England  at  the  time  the  general 
English  system  of  constitutional  government  was 
adopted  in  this  country. 


CHAPTER   II. 

THE  POWER  OF   THE  LEGISLATURE  TO    REMEDY    SPECIAL 
ADMINISTRATIVE    ABUSES. 

The  exercise  of  this  power  may  result  from  peti- 
tions which  have  been  sent  to  the  legislature  by 
individuals.  For  almost  all  American  constitutions 
guarantee  to  the  individual  the  right  to  address 
petitions  to  the  government,  and  the  legislature  is  the 
place  where  most  of  such  petitions  go.  The  legisla- 
ture may  further  act  of  its  own  motion  and  is  gener- 
ally on  the  watch  for  administrative  abuses.  The 
means  of  exercising  this  control  are  the  putting  of 
questions  to  the  officers  of  the  administration,  and 
the  undertaking  on  the  part  of  the  legislature,  through 
committees  appointed  by  it,  of  investigations  which 
may  have  in  view  either  the  unearthing  of  abuses  which 
have  been  suspected  or  obtaining  information  de  lege 
ferenda.  In  the  United  States  there  is  usually  one 
such  standing  committee  for  each  administrative 
department.  The  main  function  of  such  standing 
committees  is  to  scrutinize  carefully  the  way  in 
which  the  business  of  the  particular  department  is 
transacted.  The  special  committees  are  formed  for 
the  purpose  of  investigating  some  particular  abuse 
in  the  administration  whose  existence  is  alleged  by 

445 


446     CONTROL  OVER  THE  ADMINISTRATION. 

individuals  or  has  come  to  the  notice  of  the  legisla- 
ture. Real  authority  such  committees  do  not  have, 
except  where  the  legislature  may  have  the  power  of 
removal  or  impeachment.  Their  action  can  result 
simply  in  new  legislation.  Further,  their  power  of  ob- 
taining information  either  from  the  officers  of  the 
administration  or  from  private  individuals  is  often 
not  a  great  one.  This  is  true,  particularly  of  the 
committees  of  the  national  Congress.  For  quite  a 
time  it  was  supposed  that,  as  a  result  of  a  decision  of 
the  United  States  Supreme  Court, ^  Congress  and  its 
committees  had  full  power  to  punish  witnesses  for 
contempt  who  refused  to  answer  questions  put  to 
them  ;  but  the  same  tribunal  in  a  more  recent  case  has 
limited  very  greatly  this  power.  It  has  decided '^  that 
a  congressional  committee  has  no  power  to  punish  a 
witness  for  contempt  in  refusing  to  answer  questions 
in  regard  to  matters  over  which  Congress  has  no 
jurisdiction  ;  and,  while  the  Supreme  Court  has 
expressly  refused  to  decide  whether  Congress  has  the 
power  to  force  a  witness  to  testify  in  cases  where  it 
desires  information  for  its  use  in  legislation,  it  seems 
to  indicate  in  its  opinion  that  Congress  has  no  such 
power.  At  the  same  time  the  court  indicated  that 
Congress  and  its  committees  have  the  power  to  pun- 
ish for  contempt  in  the  case  of  impeachment  proceed- 
ings.^ Nothing,  however,  prevents  Congress  or  its 
committees  from  gathering  testimony  from  willing 
witnesses. 

When  we  come  to  the  states  it  is  not  easy  to  say 

'  Anderson  vs.  Dunn,  6  Wheaton,  204. 
'^  Kilbourn  vs.  Thompson,  103  U.  S.,  168. 
'See  also  Ex  parte  Chapman,  166  U.  S.,  661. 


SPECIAL  ADMINISTRATIVE  ABUSES.         447 

exactly  what  is  the  power  of  the  legislature  in  this 
respect.  It  is  easily  conceivable  that  the  legislatures 
of  the  states  might  have  this  power  although  it  is  not 
possessed  by  the  national  Congress.  For  there  is  no 
principle  of  our  constitutional  law  which  is  clearer 
than  that,  while  Congress  is  an  authority  of  enumer- 
ated powers,  the  legislatures  of  the  commonwealths 
may  do  anything  which  they  have  not  been  expressly 
forbidden  to  do  by  the  constitution.  And  seldom  do 
we  find  in  the  state  constitutions  any  provisions 
which  clearly  take  away  any  such  power  from  the 
state  legislatures.  Indeed  in  the  constitutions  of 
twenty-four  of  the  states  ^  such  power  of  punishing 
for  contempt  would  seem  to  be  granted.  The  con- 
stitutions of  several  of  the  states  provide  that  the 
legislature  shall  have  "  all  other  powers  necessary  for 
the  legislature  of  a  free  state."  ^  The  constitution  of 
Massachusetts  has  been  so  interpreted  by  the  supreme 
court  of  the  commonwealth  as  to  give  a  committee, 
appointed  for  the  simple  purpose  of  investigation,  the 
power  to  punish  witnesses  for  contempt.^  Finally,  in 
the  case  of  those  states  whose  constitutions  contain 
no  provision  as  to  this  point,  we  have  several  deci- 
sions which  throw  light  on  the  subject.  Most  of 
these  are  in  the  courts  of  New  York,  which  has  ap- 
parently exercised  this  power  more  frequently  than 
the  other  states.     Here  it  has  been  decided  that  the 

'  Alabama,  Arkansas,  Colorado,  Connecticut,  Delaware,  Florida,  Illinois, 
Indiana,  Iowa,  Louisiana,  Maine,  Maryland,  Massachusetts,  Minnesota, 
Missouri,  Nebraska,  Nevada,  New  Hampshire,  Oregon,  Pennsylvania,  South 
Carolina,  Tennessee,  Texas,  and  West  Virginia,  See  F.  W.  Whitridge  on 
"  Legislative  Inquests,"  in  P.  S.  Q.,  i.,  84,  89. 

^  Jbid.,  89. 

^Burnham  vs.  Morrissey,  14  Gray,  226. 


448     CONTROL  OVER  THE  ADMINISTRATION. 


legislature  or  its  committees,  to  which  it  has  dele- 
gated  the  power  of  investigation  either  by  statute  or 
by  resolution,  have  the  power  to  punish  for  contempt.^ 
The  latest  case  on  the  point  ^  imposes  an  apparent 
limitation  on  this  power  in  that  it  says  that  the  legis- 
lature or  one  of  its  committees  may  only  punish  for 
contempt  witnesses  who  refuse  to  answer  questions 
put  with  the  desire  of  obtaining  information  for  future 
legislative  action;  but,  as  it  at  the  same  time  admits 
that  the  court  cannot  impugn  the  expressed  motives 
of  the  legislature,  all  that  the  legislature  has  to  do  in 
order  to  bring  itself  under  the  rule  stated  in  this  case 
is  to  declare  in  the  resolution  appointing  the  com- 
mittee that  it  desires  such  information.^  But  even 
if  the  legislature  does  not  possess  this  power,  still  as 
a  matter  of  fact  the  officers  of  the  administration  will 
usually  comply  with  the  summons  of  an  investigating 
committee  of  the  legislature,  and  will  answer  all  rea- 
sonable questions  put  to  them,  since  *'  desiring  legisla- 
tion and  always  desiring  money  [they  have]  strong 
motives  for  keeping  on  good  terms  with  those  who 
control  legislation  and  the  purse."* 

'People  vs.  Learned,  5   Hun.,  626;  see  also  Wilckens  vs.  Willet,  i  Keyes, 

521,  525- 

'  People  ex  rel.  McDonald  vs.  Keeler,  gg  N.  Y.,  463. 

'  See  also  the  case  of  Ex  parte  Dalton,  44  Ohio  St.,  142,  which  holds  that 
the  legislature  may  punish  for  contempt  in  election  cases. 

^  Bryce,  American  Commonwealth,  i.,  154. 


CHAPTER  III. 

THE    LEGISLATIVE    CONTROL    OF    THE    FINANCES. 

Through  its  control  over  the  finances  the  legisla- 
ture exercises  a  control  over  the  general  policy  of  the 
administration,  for  the  conduct  of  the  entire  admin- 
istration is  closely  connected  with  the  amount  of  money 
which  may  be  spent.  The  control  over  the  finances 
is  to  be  found  in  three  powers  :  first,  in  the  power 
any  given  legislature  has  to  fix  the  total  amount  of 
receipts  from  taxes  which  the  officers  of  the  adminis- 
tration may  collect  for  the  coming  budgetary  period  ; 
second,  in  the  power  it  has  to  fix  the  amounts  of  money 
at  the  disposition  of  the  administration,  and  the  pur- 
poses for  which  such  money  is  to  be  spent ;  and  third,  in 
the  power  it  must  have,  if  the  second  power  is  to 
amount  to  anything,  to  ascertain,  after  the  expendi- 
ture of  the  money,  whether  the  administration  has 
acted  in  accordance  with  the  provisions  of  law  fixing 
the  amount  of  money  to  be  spent  and  the  purposes 
for  which  such  money  is  to  be  spent. 

/. — Control  over  receipts. 

The  leeislative  control  over  the  finances  in  its 
modern  form  was,  like  the  other  methods  of  legisla- 
tive control,  developed  by  England.     Originally  the 

449 


450     CONTROL  OVER  THE  ADMINISTRATION. 

only  way  in  which  the  EngHsh  Parliament  endeavored 
to  control  the  financial  administration  was  by  fixing 
the  amount  of  money  which  could  be  raised  by  the 
Crown  by  means  of  imposing  taxes  upon  the  people. 
The  Parliament  did  not  attempt  to  control  the 
amount  of  money  which  could  be  spent  nor  the  pur- 
poses for  which  it  should  be  spent/  This  was  also 
true  of  the  early  American  colonial  government.  The 
later  development  has  reversed  this  condition  of 
things.  At  the  present  time  most  of  the  receipts — 
i.  e.,  taxes — are  fixed  by  permanent  law.  No  given 
Parliament  has  much  to  do  with  receipts,  for  its 
action  is  no  longer  necessary  in  order  that  the 
receipts  shall  come  in.  So  long  as  the  law  establish- 
ing the  taxes  is  not  repealed,  which  will  require  the 
combined  action  of  both  houses  of  Parliament,  the 
administration  may  go  on  collecting  the  taxes  regard- 
less of  Parliament,  providing  it  acts  in  accordance 
with  existing  law.^  This  principle  has  been  intro- 
duced into  the  United  States.  Thus  in  the  national 
government  the  customs  duties  and  the  internal- 
revenue  taxes,  from  which  two  sources  most  of  the 
revenue  of  the  national  government  is  obtained,  are 
both  fixed  in  amount  by  permanent  law  in  that  the 
rates  which  may  be  levied  are  so  fixed.  The  amount 
of  money  which  is  received  from  these  sources  is  in- 
dependent of  the  action  of  any  particular  Congress 
and  depends  rather  upon  the  business  and  prosperity 
of  the  country.  If  the  houses  of  Congress  take  no 
action  on  these  matters  the  duties  provided  by  law 

'  Cox,  Institutions  of  the  English  Government,  199. 

*  Gneist,  Das  Englische  Verwaltungsrecht,  1884,  i.,  431  ;  ii.,  715.  At  the 
present  time  almost  the  only  tax  which  is  fixed  in  amount  by  each  Parliament 
is  the  'ncome  tax. 


LEGISLATIVE  CONTROL  OF  FINANCES.      451 

are  still  levied.  This  is  true  also  of  the  other 
receipts  of  the  national  government,  such,  for  exam- 
ple, as  tonnage  dues  and  the  receipts  of  the  post- 
ofifice  and  from  the  sale  of  public  lands.  A  o-iven 
Congress  has  generally  therefore  nothing  to  say  as  to 
the  amount  of  the  receipts  of  the  government.  In 
order  to  change  them  in  any  way,  either  the  two 
houses  and  the  President  must  agree,  or  the  two 
houses  of  Congress  must  act  by  a  sufficiently  large 
majority  to  overcome  the  veto  of  the  President. 

We  find,  however,  instances  of  the  annual  vote  of 
taxes  by  the  legislature  in  some  of  the  states.  Indeed 
this  seems  originally  to  have  been  all  but  the  univer- 
sal rule  as  a  result  of  the  kind  of  tax  which  was 
adopted.  This  was  the  general  property  tax,  and  the 
way  in  which  it  was  levied  was  to  ascertain  the 
amount  of  money  to  be  spent  and  then  apportion  it 
among  the  counties  of  the  commonwealth.  This  of 
course  necessitated  action  by  the  legislature  at  each 
of  its  sessions.  But  with  the  recent  changes  in  the 
tax  system  the  control  each  legislature  has  over  the 
receipts  has  been  considerably  lessened  in  many  of 
the  states.  For  some  of  the  taxes  are  now  fixed  ab 
to  rate  by  permanent  law — e.g.,  the  corporation  tax 
and  the  inheritance  taxes — and  the  action  of  any 
particular  legislature  is  no  longer  necessary  to  their 
collection. 

//. — Control  over  expe^tses. 

It  has  already  been  pointed  out  that  the  English 
Parliament  originally  contented  itself  in  the  exercise 
of  its  control  over  the  financial  administration  with  fix- 
ing the  amount  of  the  supplies  obtained  from  taxation 


452    CONTROL  OVER  THE  ADMINISTRATION. 

which  were  to  be  placed  at  the  disposition  of  the 
Crown.  It  did  not  attempt  in  any  way  to  exercise  a 
control  over  the  disposal  by  the  Crown  of  the  money 
in  its  control  regarding  the  spending  of  money  once 
raised  as  peculiarly  a  part  of  the  royal  prerogative. 
But  the  abuses  of  the  financial  administration  partic- 
ularly by  the  Stuart  kings  led  the  Parliament  to  begin 
soon  after  the  Restoration,  viz.,  in  1676,  regularly  to 
designate  the  purposes  for  which  the  money  should 
be  spent,  by  the  insertion  in  the  grant  of  what  was 
known  as  an  "  appropriation  clause."  ^  This  clause  not 
only  designated  the  purposes  for  which  money  was 
to  be  spent,  but  also  forbade  the  Crown  to  make  any 
other  use  of  the  money  granted  than  that  expressed 
in  the  clause.^  It  must  be  remembered,  however, 
that  this  clause  at  first  affected  only  the  extraordinary 
revenue  of  the  Crown, — i.  e.,  the  revenue  coming  from 
taxation, — and  also  was  of  a  very  general  character. 
But  with  the  gradual  increase  of  the  extraordinary 
revenue  and  at  the  same  time  the  decrease  not  only 
in  importance  but  also  in  actual  amount  of  the 
ordinary  revenue  (/.  e.,  the  revenue  from  the  royal 
domains,  etc.),  the  legislature  got  into  its  hands  the 
control  of  most  of  the  expenses  of  the  government  as 
well  as  that  of  the  receipts  which  at  this  time  had  not 
become  permanent.  The  result  was  a  very  unstable 
condition  of  the  finances.  This,  it  was  felt,  weakened 
the  power  of  the  state  particularly  since,  as  a  result 
of  the  foreign  policy  of  England  during  the  reign  of 

'  Cox,  Institutions  of  the  Engiish  Government,  p.  199.  Cox  cites  here 
much  earlier  instances  of  such  appropriation  clauses,  but  says  that  they  were  of 
rare  occurrence. 

*  In  16S0,  Sir  Edward  Seymour,  the  Treasurer  of  the  Navy,  was  impeached 
for  not  observing  such  clauses.     Ibid.,  200,  note  {a),  citing  8  State  Trials,  127. 


LEGISLATIVE  CONTROL  OF  FINANCES.      453 

William  III.,  a  large  debt  had  grown  up.  This  in- 
stability was  remedied  in  the  following  ways  :  In  the 
first  place,  the  receipts  were  made  stable  by  establish- 
ing the  taxes  by  permanent  law  instead  of  making  the 
action  of  each  Parliament  necessary  in  order  that 
they  might  flow  into  the  treasury.  In  the  second 
place,  in  order  to  insure  the  stability  of  certain  at  any 
rate  of  the  expenses,  it  was  provided  that  such  ex- 
penses should  be  paid  out  as  a  result  of  a  permanent 
law.  Such  was  particularly  the  case  with  the  interest 
on  the  public  debt,  which,  it  was  felt,  should  not  be 
dependent  on  the  annual  action  of  the  Parliament.^ 

In  the  United  States  a  somewhat  similar  method 
of  insuring  the  stability  of  certain  of  the  expenses  has 
been  adopted.  As  has  been  shown,  the  receipts  are 
permanent.  The  statutes  of  Congress  have  also  pro- 
vided for  quite  a  number  of  appropriations  which  are 
based  upon  permanent  law.  The  growth  of  the  na- 
tional debt  at  the  time  of  the  civil  war  made  Congress 
feel  the  same  fear  that  had  been  felt  before  in  Enorland 

o 

as  to  the  effect  on  the  public  credit  of  the  country  of 
the  dependence  of  interest  and  sinking-fund  payments 
on  congressional  action.  There  was  therefore  adopted 
a  system  of  what  were  called  permanent  annual  ap- 
propriations established  by  permanent  law  which 
should  be  sufficient  authorization  to  the  administra- 
tion to  make  the  necessary  payments  without  any  spe- 
cial action  on  the  part  of  the  Congress.  Among  these 
permanent  annual  appropriations  are  to  be  mentioned, 
in  addition  to  the  debt  payments,  the  expense  of  col- 
lecting the  customs  duties,  and  the  salaries  of  judicial 
officers.      Finally,  as  a  result  of  the  decisions  of  the 

'  See  3  Geo.  I.,  c.  7;  Gneist,  Das  Englische  Verwaltungsrecht,  18S4,  6S6. 


454    CONTROL  OVER  THE  ADMINISTRATION. 

supreme  court/  the  fixing  of  salaries  by  permanent 
law,  which  is  often  the  case,  is  regarded  much  as  a 
permanent  annual  appropriation.  For  the  officer 
whose  salary  is  thus  fixed  may  sue  the  government 
for  it.  The  salaries  would  thus  have  to  be  paid  re- 
gardless of  the  action  of  Congress,  unless  such  action 
was  by  a  majority  sufficient  to  override  the  President's 
veto.  This  decision  of  the  supreme  court  has  vastly 
increased  the  independence  of  the  administration.^ 
It  is  indeed  true  that  the  act  orcranizingf  the  Court  of 
Claims  provides  that  judgments  against  the  United 
States  shall  be  paid  out  of  the  appropriation  for  pri- 
vate claims  ;  but  in  time  of  conflict  between  the  Con- 
gress and  the  President  it  is  very  probable  that  the 
President  would  conduct  the  government  and  would 
have  salaries  paid  without  annual  appropriations,  and 
be  able  to  do  so  successfully.  The  result  of  these 
permanent  annual  appropriations  is  that  a  large  part 
of  the  current  expenses  of  the  government,  inclusive 
of  pensions  and  salaries,  is  beyond  the  reach  of  any 
particular  Congress.  That  is,  it  is  not  necessary,  in 
order  that  these  expenses  be  paid,  that  there  be  any 
action  at  all  on  the  part  of  Congress.  The  failure  of 
Congress  to  act  or  to  agree  with  the  President  will 
not  affect  the  action  of  the  administration  in  the  car- 
rying on  of  the  government  through  the  payment  of  a 
large  part  of  the  expenses.  The  expenses  of  the  gov- 
ernment which  are  particularly  under  the  control  of 
each  Congress  are  those  of  the  army,  the  navy,  and 


'  United  States  vs.  Langston,  ii8  U.  S.,  389. 

'See  also  Antoni  vs.  Greenhow,  107  U.  S.,  769,  in  which  it  is  said  that  the 
declaration  by  the  legislature  that  money  shall  be  spent  is  an  appropriation  by 


law 


LEGISLATIVE  CONTROL  OF  FINANCES.       455 

of  the  other  branches  of  the  administration  with  the 
exception  of  the  customs. 

Congress  has  never,  as  has  the  EngHsh  House  of 
Commons,  divested  itself  of  the  right  to  make  appro- 
priations other  than  those  proposed  by  the  adminis- 
tration. Indeed  in  practice  many  of  the  most  unwise 
appropriations  of  the  national  government  are  made 
on  the  proposition  of  Congress  and  not  on  that  of  the 
administration.  Congress  further  always  makes  use 
of  its  undoubted  right  to  cut  down  or  amend  in  some 
way  the  estimates  sent  in  by  the  administration.  It 
has  also  attempted,  by  tacking  to  appropriations  pro- 
visions objectionable  to  the  administration,  to  force 
their  acceptance  by  it,  under  a  threat  of  the  refusal  of 
the  estimates,  but  the  determined  stand  made  by  one 
of  the  Presidents  and  the  absolute  impossibility  of 
refusing  important  appropriations  to  the  administra- 
tion have  finally  convinced  the  Congress  that  this  is 
not  a  proper  use  of  its  control  over  the  finances. 

When  we  come  to  the  control  of  the  state  leeisla- 
tures  over  the  expenses,  we  find  such  a  variety  of 
systems  that  it  is  impossible  to  say  what  is  the  general 
rule.  In  some  states  we  find  that  the  amount  of  the 
appropriations  is  fixed  almost  altogether  by  the  ad- 
ministration in  accordance  with  general  and  permanent 
laws  over  which  a  given  legislature  has  practically 
little  control  ^ ;  and  it  has  been  held  that  without  any 
special  appropriation  the  payment  of  salaries  fixed  by 
permanent  law  may  be  enforced  by  mandamus.^  In 
other  and  indeed  in  most  cases  most  of  the  appropri- 

'  The  courts  seem  to  regard  this  practice  as  perfectly  proper.  See  People  z^s. 
Supervisors,  i  Hill,  N.  Y.,  195  ;  John  J.  Townsend,  Trustee,  vs.  Mayor,  etc., 
77  N.  v.,  542. 

■^  Nichols  vs.  Comptroller,  4  Stew,  and  Port.,  Ala.,  154. 


456    CONTROL  OVER  THE  ADMINISTRATION. 

ations  are  made  annually  or  biennially  by  the  legisla- 
ture.^ In  all  the  states  the  legislature  has  the  power 
to  make  appropriations  other  than  those  proposed  by 
the  administration  if  the  administration  is  to  submit 
estimates  to  the  legislature.  Generally  also  the  legis- 
lature, where  such  estimates  are  submitted  to  it,  has  the 
right  to  cut  them  down  and  often  exercises  this  power. 
But  as  a  result  of  the  very  general  power  of  the  gov- 
ernor to  veto  items  in  appropriation  bills  the  legislature 
may  not  force  the  administration  to  take  action  not 
approved  by  it  as  a  result  of  tacking  objectionable 
provisions  to  an  appropriation  bill. 

///. — Exaniinatio7i  of  accounts. 

In  order  that  the  control  which  the  legislature  pos- 
sesses over  the  administration  through  its  control 
over  the  receipts  and  expenses  may  be  of  any  value, 
it  is  necessary  that  it  have  the  further  power  of 
examining  the  accounts  of  the  administration  after 
the  execution  of  the  budget.  In  this  way  and 
in  this  way  alone  can  it  satisfy  itself  that  its  direc- 
tions relative  to  the  receipts  and  expenses  have 
been  observed.  In  the  United  States  the  leg-is- 
lature  acts  in  its  investigations  unaided  by  any  other 
authority.  Great  care  is  taken  both  by  the  na- 
tional constitution  and  by  the  statutes  of  Congress 
to  ensure  the  full  publicity  of  the  accounts  of  the  ad- 
ministration, while  the  secretary  of  the  treasury  has 
to  report  to  Congress  in  full  the  entire  receipts  and 
expenditures  of  the  preceding  year.^     The   rules  of 

'  In  some  cases  this  is  required  by  the  constitution,  Stimson,  op.  cil.,  p.  320 
B.     This  is  so  in  Arkansas,  Kansas,  Louisiana,  Missouri,  Ohio,  and  Texas. 

^Constitution,  art.  i.,  sec.  9,  par.  7;  U.  S.  R.  S.,  sees.  260,  261,266, 
and  267. 


LEGISLATIVE  CONTROL  OF  FINANCES.      457 

the  House  of  Representatives  have  usually  provided  ^ 
that  such  accounts  shall  go  to  the  Speaker  of  the 
house  and  be  submitted  by  him  to  the  house  for  refer- 
ence. They  are  then  to  be  referred  ^  to  one  of  the 
eight  standing  committees  on  expenditure,  which  shall 
examine,  together  with  the  manner  of  keeping  them, 
the  economy,  justness,  and  correctness  of  the  expen- 
ditures, their  conformity  with  appropriation  laws,  the 
proper  application  of  public  moneys,  the  security  of 
the  government  against  unjust  and  extravagant  de- 
mands, retrenchment,  the  enforcement  of  the  payment 
of  moneys  due  to  the  United  States,  the  economy 
and  accountability  of  public  officers,  the  reduction  or 
increase  of  pay  of  officers,  and  the  abolishment  of 
useless  offices.  Each  of  the  eight  standing  com- 
mittees on  the  expenditures  of  the  departments  has 
one  or  more  of  these  subjects  within  its  purview,  and 
after  making  the  necessary  examinations  is  to  report 
to  the  house.  What  the  legislature  will  do  in  case  of 
unauthorized  expenditures  or  of  failure  to  observe  the 
provisions  of  the  budget,  the  laws  and  the  rules  do 
not  say  ;  and  it  is  not  the  habit  of  the  house  to  pass 
any  law  or  resolution  settling  and  affirming  the 
actions  of  the  administration  in  case  they  are  in  con- 
formity with  the  appropriation  acts,  and  releasing  the 
officers  of  the  government  having  control  of  the  exe- 
cution of  the  budget  from  all  further  responsibility 
for  it. 

'  See  Rule  42.  '  Rule  11,  sec.  35. 


CHAPTER  IV. 


IMPEACHMENT. 


Impeachment  proceedings,  like  the  other  methods 
of  legislative  control,  are  derived  from  England.  The 
method  of  impeachment  seems  to  have  been  neces- 
sary in  England  because  the  English  law  did  not 
allow  a  civil  or  criminal  suit  to  be  brought  against  the 
highest  officers  of  state  except  with  extreme  difficulty. 
It  was  thus  developed  mainly  to  fill  up  a  gap  in  the 
judicial  control.  A  further  reason  for  its  develop- 
ment is  to  be  found  in  the  impossibility  of  obtaining 
a  conviction  of  the  great  nobles  before  the  ordinary 
courts,^  and  in  the  necessity  of  some  means  of  legis- 
lative control  in  the  days  when  the  principle  of  the 
parliamentary  responsibility  of  the  ministers  had  not 
been  developed.^  Since  its  development  in  England 
it  has  been  adopted  to  some  extent  in  almost  all  con- 
stitutional countries,  and  in  some  cases  is  made  use  of 
against  not  only  the  ministers  but  also  all  civil  offi- 
cers of  the  government. 

The  ordinary  English  method  of  impeachment  was 
formed  on  the  model  of  the  ordinary  criminal  pro- 
cedure, the   House  of  Commons   taking  the  part  of 

'  RIackstone,  Commentaries,  iv. ,  360. 

^  For  its  history  see  Cox,  Institutions  of  the  English  Government,  229,  et 
seq.,  468. 

458 


IMPEA  CHMEN  T.  45  9 

the  grand  jury  and  thus  bringing  forward  the  im- 
peachment or  indictment,  the  House  of  Lords  acting 
as  the  court.^  The  grounds  for  impeachment  were 
originally  abuse  of  office  from  corrupt,  partial,  or  op- 
pressive motives,  violation  of  the  law,  and  treason, 
which  was  usually  defined  by  the  court  of  impeach- 
ment to  suit  itself,  and  depended  very  much  upon  its 
feelings  towards  the  accused,^  but  later  came  to  in- 
clude, especially  during  the  reigns  of  the  Stuarts, 
offences  political  in  nature.^  The  punishment  origi- 
nally was  death,  banishment,  fine,  or  imprisonment  in 
the  discretion  of  the  court  of  impeachment.  Soon 
after  this  method  was  developed  there  grew  up  the 
habit  of  exercising  this  control  through  the  ordinary 
process  of  legislation— z'.  e.,  by  the  passage  of  a  bill  of 
attainder  in  accordance  with  which  no  fair  trial  was 
granted  the  person  attainted.  This  seems  to  have 
originated  with  the  Tudors  and  was  quite  frequently 
employed  during  the  constitutional  struggle  of  the 
seventeenth  century.''  This  method  has,  however,  in 
practice  been  abandoned  as  grossly  unjust.  Parlia- 
ment still,  of  course,  has  the  power  to  pass  a  bill  of  at- 
tainder if  it  wishes  to,  although  in  the  United  States 
such  action  by  either  Congress  or  a  state  is  forbidden 
by  the  national  constitution.^  The  method  of  im- 
peachment has,  however,  with  the  development  of  the 
principle  of  the  parliamentary  responsibility  of  the  min- 
isters, rather  fallen  into  disuse,  the  last  case  being  that 
of  Warren   Hastings,  which  occurred  about  the  end 

'  Cox,  Institutions  of  the  English  Government,  22g,  470,  471. 

*  Gneist,  Das  Englische  Verwaltungsrecht  (1884),  436. 

s  Ibid. 

*Cox,  op.  cit.,  235,  465. 

•Art.  i.,  sec.  9,  par.  3;  sec.  ro,  par.  r. 


46o    CONTROL  OVER  THE  ADMINISTRATION. 

of  the  eighteenth  century.  The  other  methods  of 
legislative  control  are  so  complete  that  it  is  difficult 
to  see  in  what  cases  the  method  of  impeachment 
could  be  applied  with  advantage.  The  power  still 
remains  in  Parliament  and  may  be  made  use  of  in  an 
extreme  case  where  all  other  means  of  control  fail  to 
bring  the  administration  to  an  observance  of  the  laws 
or  customs  of  the  land. 

This  method  of  impeachment  has,  however,  been 
adopted  in  the  United  States  both  in  the  national  and 
in  the  state  governments.  The  national  constitution 
provides  that  the  House  of  Representatives  shall 
have  the  sole  power  to  impeach  the  President,  Vice- 
President,  and  all  civil  officers  of  the  United  States^  ; 
that  the  Senate  shall,  with  the  chief  justice  of  the 
United  States  as  presiding  officer  in  case  the  Presi- 
dent is  impeached,  have  the  sole  power  to  try  im- 
peachments and  shall  convict  only  as  a  result  of  a 
two-thirds  vote  of  the  members  present,^  and  that  the 
punishment  in  case  of  conviction  shall  be  removal 
from  office  and  disqualification  to  hold  any  office  of 
honor,  trust,  or  profit  under  the  United  States  in  the 
future,  with  the  impossibility  of  pardon,  but  that  the 
person  so  convicted  shall  be  liable  to  indictment, 
trial,  judgment,  and  punishment  according  to  law,^ 
The  causes  of  impeachment  are  treason,  bribery,  and 
"  other  high  crimes  and  misdemeanors."  ^  There  have 
been  two  views  as  to  the  meaning  of  this  phrase. 
One  is  that  the  only  cause  for  impeachment  is  a 
crime — i.  e.,  an  act  for  which  a  person  may  be  indicted 

'  Art.  i.,  sec.  2,  par.  5;  art.  ii.,  sec.  4. 
'Art.  i.,  sec.  3,  par.  6. 
'  Ibid.,  par.  7. 
''Art.  ii. ,  sec.  4. 


IMPEACHMENT.  461 

and  punished  in  accordance  with  the  law  ^  ;  the  other 
assigns  a  much  wider  meaning  to  the  phrase  and 
claims  that  the  phrase  was  purposely  left  vague  at 
the  time  of  the  formation  of  the  constitution,  so  that 
it  might  by  construction  be  made  to  include  political 
offences.^  The  cases  in  which  the  article  in  the  con- 
stitution relative  to  the  causes  of  impeachment  has 
been  construed  are  few  in  number  and  some  of  them 
have  been  decided  for  jurisdictional  reasons  and  are 
therefore  of  little  value  m  throwing  light  on  the  mean- 
ing of  the  article.  Thus  the  first  case,  viz.,  that  of 
Senator  Blount,  decided  that  a  senator  of  the  United 
States  could  not  be  impeached  inasmuch  as  he  was 
not  a  civil  officer  of  the  United  States  in  the  meaninof 
of  the  constitution,  while  one  of  the  latest  cases,  viz., 
that  of  a  cabinet  officer,  was  decided  largely  on  the 
ground  that,  as  such  officer  had  resigned  and  his 
resignation  had  been  accepted  by  the  President,  he 
was  not  subject  to  the  jurisdiction  of  the  impeachment 
court.  The  only  cases  in  which  the  person  impeached 
has  been  convicted  are  those  of  Judge  Pickering,  who 
was  convicted  of  offences  distinctly  not  political ; 
Judge  Humphreys,  who  was  convicted  of  treason  in 
the  beginning  of  the  war,  his  treasonable  acts  being 
the  making  of  a  speech  in  favor  of  secession  and 
acceptance  of  the  office  of  judge  in  the  southern  con- 
federacy. On  the  other  hand.  Judge  Chase,  who  was 
impeached  for  "  highly  indecent  and  extra-judicial  " 
reflections  upon  the  government  of  the  United  States, 
made  to  a  grand  jury  during  the  time  when  the  alien 

'See  opinions  of  Mr.  Senator  Davis  and  Mr.  Senator  Trumbull  in  "  Im 
peachment  Trial  of  Andrew  Johnson." 

*  See  opinion  of  Mr.  Senator  Sumner.     Ibid. 


462     CONTROL  OVER   THE  ADMINISTRATION. 

and  sedition  laws  were  in  force  ;  President  Johnson, 
who  was  impeached  for  a  poHtical  offence  which  had 
been  made  a  high  crime  and  misdemeanor  by  act  of 
Congress;  and  Judge  Peck,  who  was  impeached  for 
arbitrary  conduct  in  committing  for  contempt  of  court 
an  attorney  who  had  pubHshed  a  criticism  of  one  of  his 
opinions,  were  all  of  them  acquitted.'  It  would  seem 
therefore  that  the  phrase  "  high  crimes  and  misde- 
meanors "  does  not  include  political  matters.  This  is 
largely  due  to  the  large  majority  which  is  required  for 
conviction  in  the  court  of  impeachment.  For  in  the 
case  of  an  impeachment  for  an  act  of  a  political  char- 
acter party  feelings  will  be  arrayed  against  each  other, 
and  in  the  state  of  political  parties  in  the  United 
States  it  will  be  very  unusual  for  any  party  to  have 
such  complete  control  of  the  court  of  impeachments 
as  to  be  able  to  get  the  required  two-thirds  majority. 
The  constitutions  of  most  of  the  states  recognize 
the  right  of  the  legislature  to  impeach  and  convict  the 
officers  of  the  state  government,  but  the  provisions  dif- 
fer somewhat  in  their  details.  One  constitution,  viz., 
that  of  Oregon,  expressly  forbids  impeachment.  The 
majority  of  the  constitutions  provide  for  the  impeach- 
ment of  all  civil  officers.  Some  expressly  refer  to  the 
governor.^  The  cause  for  impeachment  in  most  of 
the  constitutions  is  crime,  but  some  provide  that  im- 
morality, official  corruption,  or  misconduct,  and  even 
incompetence,  incapacity,  or  neglect  of  official  duty, 
and  favoritism  will  be  sufficient  cause.'^    All  the  states 

'  See  Cyclopcedia  of  Political  Science,  etc.,  sub  verbo  "  Impeachment."'  Article 
by  Alexander  Johnson;  see  also  Am.  and  Eng.  Encyc.  of  Laiv,  2d  ed.,  vol. 
XV.,  pp.  1066  et  seq.     Article  by  Walter  Carrington. 

'  Stimson,  American  Statute  Lmv,  p    63. 

'  So  in  Louisiana,  West  Virginia,  Virginia,  and  Florida.     See  ibid.,  64, 


IMPEACHMENT.  463 

in  which  provision  is  made  for  impeachment,  with  the 
exception  of  Nebraska,  provide  that  the  lower  house 
of  the  legislature  is  to  initiate  the  impeachment  gen^ 
erally  as  a  result  of  a  majority  vote.  In  Nebraska  the 
impeachment  is  to  be  initiated  by  the  legislature  in 
joint  assembly  of  the  two  houses.  In  all  but  two 
states  the  impeachment  is  to  be  tried  by  the  senate, 
a  vote  by  two-thirds  of  whose  members  or  two-thirds 
of  whose  members  present,  being  usually  necessary 
for  conviction.  In  New  York,  however,  the  judges 
of  the  court  of  appeals,  the  highest  court,  are  joined 
with  the  senate,  and  together  with  it  form  the  court 
of  impeachment,  while  in  Nebraska  the  supreme 
court  is  the  court  of  impeachment.^  The  effect  of 
conviction  is  in  almost  all  cases  removal  from  office, 
and  in  most  cases  also  disqualification  to  hold  office. 
But  generally  persons  impeached  may  be  at  the  same 
time  indicted  and  punished  in  the  usual  way.'^ 

'So  in  Louisiana,  West  Virginia,  Virginia,  and  Florida.     See  ibid.,  64. 
s  Ibid.,  p.  65. 


LIST  OF  AUTHORITIES. 

Abbreviatio  Placitorum,  421 

Adams,  Works,  I.,  237 

Allison  and  Penrose,  Philadelphia,  204,  208,  210 

Anson,  The  Law  and  Custom  of  the  Constitution,  180 

Ash,  Charter  of  the  City  of  New  York,  206 

Aucoc,  Conferences  sur  V Administration  et  le  Droit  Administratif ,  66 

Baldwin,  Modern  Political  Institutions,  94 

Barbour,  "  The  Value  of  State  Boards,"  in  Conference  of  Charities  and 

Correction,  1894,  141 
Beard,  "The  Office  of  Justice  of  the  Peace,"  in  Columbia   University 

Studies  in  History,  Economics,  and  Public  Law,  XX.,  181 
Benton,  Thirty  Years'  View,  123 
Bernheim,  "Party   Organizations   and   their   Nominations  to   Public 

Office  in  New  York  State,"  in  Political  Science  Quarterly,  III.,  244 
Bishop,  Criminal  Law,  II.,  298 

Black,  "The  History  of  the  Municipal  Ownership  of  Land  on  Man- 
hattan   Island,"    in    Cohimbia    University   Studies    of   History, 

Economics,  and  Public  Law,  I.,  207 
Blackstone,  Commentaries,  421,  422,  458 
Blue,  New  York  State  Library  Bulletin,  1901,  157 
Blue,  "Tendencies  in  State  Administration,"  in  Annals  of  the  American 

Academy,  XVIII.,  155 
Bondy,  "The  Separation  of  Powers,"  in  Columbia  University  Studies  in 

History,  Economics,  and  Public  Law,  V.,  31,  35 
Bowman,  "Administration  of  Iowa,"  in  Columbia  University  Studies 

in  History,  Economics,  and  Public  Law,  XVIII.,  63,  141,  157 
Bryce,  American  Commonwealth,  I.,  209,  448 
Chicago  Conference  for  Good  City  Government,  251 
Church,  Habeas  Corpus,  428,  430,  432,  433 
Clarke,  Debates  of  the  Convention  of  182 1,  99 
Commons,  Proportional  Representation,  243 
Cooley,  Taxation,  343,  358.  402 
Cooley,  Torts,  398,  404 

Cox,  Institutions  of  the  English  Government,  450,  452,  458,  459 
Dallinger.  Nominations  for  Elective  Offices  in  the  United  States,  244 
Dicey,  The  Law  of  the  Constitution.  2 
30  465 


466  LIST  OF  AUTHORITIES. 

Dillon,  Municipal  Corporations,  4th  ed.,  165,  169,  203,  204,  208,  210, 

211,  343.  i'^Z^  386 
Dockery  Commission,  53d  Congress,  Second  Session,  House  Reports,  49, 

1893,  120 
Documents  Relating  to  the  Colonial  History  of  New  York,  IV.,  1 10,  184, 185 
Ducrocq,  Cours  de  Droit  Administratif ,  25 
Dunbar,  "Government  by  Injunction,"  in  The  Law  Quarterly,  October, 

1897,  411 
Dunning,  "The  Constitution  in  Civil  War,"  in  Political  Science  Quar- 
terly, I.  47 
Eaton,  "Right  to  Local  Government,"  in  Harvard  Law  Review,  XIII., 

168 
Eliot,    "One   Remedy  for   Municipal  Government,"   in   The  Forum, 

October,  1891,  230 
Elmes,  Executive  Departments,  75 
Fairlie,  "The  Administrative  Powers  of  the  President,"  in  Michigan 

Law  Review,  II.,  47,  76,  87,  94,  114 
Fairlie,  "American  Municipal  Councils,"  in  Political  Science  Quarterly, 

June,  1904,  218 
Fairlie,  "The  Centralization  of  Administration  in  New  York  State,"  in 

Columbia  University  Studies  in  History,  Economics,  and  Public 

Law,  IX.,  63,  139,  140,  147,  198 
Fairlie,  Municipal  Administration,  100,  210,  212 
Fairlie,   "State  Administration  in  New  York,"   in  Political  Science 

Quarterly,  XV.,  195 
Fisher,  "Suspension  of  Habeas  Corpus,"  in  Political  Science  Quarterly, 

III.,  75 
Ford,  The  Rise  and  Growth  of  American  Politics,  14,  24,  48,  236 
Freund,  "American  Administrative  Law,"  in  Political  Science  Quarterly, 

IX.,  43 
Freund,    "Private    Claims   against   the    State,"    in   Political  Science 

Quarterly,  VIII.,  393 
Gitterman,  "New  York  Council  of  Appointment,"  in  Political  Science 

Quarterly,  VII.,  231 
Gneist,  Das  Englische  Verwaltungsrecht,  371,  372,  450,  453,  459 
Gneist,  History  of  the  English  Constitution,  421,  422 
Gneist,     Self-Government,     Communalverfassung    und     Verwaltungs- 

gerichte,  199,  205 
Goodnow,  Comparative  Administrative  Law,  I.,  189,  221 
Goodnow,    "Local    Government    in    England,"    in    Political   Science 

Quarterly,  II.,  179 
Goodnow,  Municipal  Home  Rule,  171,  172,  173 
Goodnow,  Politics  and  Administration,  4 
Goss,    "History  of  Tariff  Administration  in  the  United   States,"   in 

Columbia  University  Studies  in  History,  Economics,  and  Public 

Law,  I.,  62,  142 


LIST  OF  AUTHORITIES.  467 

Guggenheimer,  "The  Development  of  Executive  Departments,"  in 
Jameson,  Essays  in  the  Constitutiottal  History  of  the  United 
States,  120 

Hammond,  History  of  Political  Parties  in  the  State  of  New  York,  I.,  102 

High,  Extraordinary  Legal  Remedies,  421,  422,  435 

High,  Injunctions,  431 

HilUard,  Injunction,  436 

Holland,  Elements  of  Jurisprudence ,  2 

Howard,  Local  Constitutional  History  of  the  United  States,  I.,  182,  183, 
184,  185,  186,  187,  188,  189,  191,  195,  197,  198 

Impeachment  Trial  of  Andrew  Johnson,  461 

Johns  Hopkins  University  Studies  in  Historical  and  Political  Science, 
v.,  206,  207,  210 

Kent,  Comm£ntary  on  the  City  Charter,  206,  208 

King,  "Claims  against  Governments,"  in  American  Law  Register  and 
Review,  XXXII.,  394 

Laferriere,  La  Juridiction  Administrative ,  I.,  299 

Lawrence,  "Police  Removals  and  the  Courts,"  in  Political  Science 
Quarterly,  March,  1905,  434 

"Local  Self-Govemment  in  the  Southwest,"  in  Johns  Hopkins  Uni- 
versity Studies  in  Historical  and  Political  Science,  XL,  190 

Loaning,  Deutsche s  V erwaltungsrecht ,  396 

Lowell,  Government  and  Parties  in  Continental  Europe,  8,  69 

Macy,  Party  Organization  and  Machinery,  5,  48 

Maltbie,  English  Local  Government  of  To-day,  328 

Mechem,  Law  of  Officers,  136,  222,  226,  263,  283,  297,  310,  314,  315, 
341,  342,  344,  345,  399,  405,  406,  407,  408,  431 

Messages  and  Papers  of  the  Presidents ,  II.,  265 

Meyer,  Nominating  Systems,  246,  248,  249,  250 

Mommsen,  Romisches  Staatrecht,  383 

Montesquieu,  Esprit  des  Lois,  24 

Morehouse,  Supervisor' s  Manual,  193 

New  York  State  Library  Bulletin,  72;  "Review  of  Legislation,"  1902, 

156 

New  York  Times,  April  23,  1886,  437 

Oberholtzer,  The  Referendum  in  America,  37,  42 

Orth,   "The  Centralization  of  Administration  in  Ohio,"  in  Columbia 

University  Studies  of  History,  Economics,  and  Public  Law,  XVI., 

63,  139,  140,  198 
Ostrogorski,   "Woman  Suffrage  in  Local  Government,"   in  Political 

Science  Quarterly,  VI.,  677,  264 
Palgrave,  An  Essay  upon  the  Original  Authority  of  the  King's  Council, 

421,  422,  425 
Parker  and  Worthington,  The  Law  of  Public  Health  and  Safety,  340, 

348,  360,  363,  364,  365 
"Penn's  Charter,"  in  Johns  Hopkins  University  Studies,  V.,  206 


468 


LIST  OF  AUTHORITIES. 


Powers,  "Railroad  Indemnity  Lands,"  in  Political  Science  Quarterly, 
IV.,  8i 

Powers,  "The  Reform  of  the  Federal  Service,"  in  Political  Science 
Quarterly,  III.,  302 

Rawles,  "Centralizing  Tendencies  in  the  Administration  of  Indiana," 
in  Columbia  University  Studies  of  History,  Economics,  and 
Public  Law,  XVII.,  63,  198 

Reeves,  History  of  the  English  Law.  422 

Rollin,  School  Administration,  209,  219 

Rowe,  "The  Financial  Relation  of  the  Department  of  Education  to 
the  City  Government,"  in  Annals  of  the  American  Academy  of 
Political  and  Social  Science,  XV.,  219 

Ryley,  Pleadings,  421 

Sarwey,  Allgemcines  Verwaltungsrecht,  43 

Sites,  "Centralized  Administration  of  Liquor  Laws  in  American  Com- 
monwealths," in  Columbia  University  Studies  of  History,  Eco- 
nomics, and  Public  Law,  X.,  63 

Smith,  Practice  at  Quarter  Sessions,  424,  425 

Snow,  The  Administration  of  Dependencies,  121 

Sparling,  "Responsible  County  Government,"  in  Political  Science 
Qtmrierly,  XVI.,  191 

Stubbs,  Constitutional  History  of  England,  179,  421,  422 

Todd,  Parliamentary  Government  in  England,  399 

Viner,  Abridgment,  429,  430 

Webster,  "Recent  Centralizing  Tendencies  in  State  Educational  Ad- 
ministration," in  Columbia  University  Studies  in  History,  Eco- 
nomics, and  Public  Law,  VIII.,  62,  140,  198 

White,  "State  Boards  and  Commissions,"  in  Political  Science  Quar- 
terly, XVIII.,  156.  157 

Whitridge,  "Legislative  Inquests,"  in  Political  Science  Quarterly,  I.  447 

Whitten,  "Public  Administration  in  Massachusetts,"  in  Columbia 
University  Studies  of  History,  Economics,  and  Public  Law,  VIII., 
63,  141 

Wilcox,  The  American  City,  211 

Wilcox,  "Party  Government  in  the  Cities  of  New  York,"  in  Political 
Science  Quarterly,  December,  1889,  261 

Wilcox,  The  Study  of  City  Government,  320 

Woodburn,  The  American  Republic  and  its  Gove'rnmerd,  94 

Wyman,  Administrative  Law,  2,  87,  90,  123,  142,  143 

Young,  "Administration  of  City  Schools,"  in  Annals  of  ih*  American 
Academy  of  Political  and  Social  Science,  XV.,  319 

Zueblin,  Municipal  Progress,  211 


INDEX. 


Acceptance  of  an  office,  255; 
when  incompatible  vacates  first 
office,  309;  at  common  law  ob- 
ligatory, 255 

Accounts,  examination  of,  by 
legislature,  456 

Act  of  settlement,  24,  425 

Administration,  administrative 
control  over,  373,  383 ; branches 
of,  120 ;  bureaucratic  system  of, 
228;  central,  62,  64;  in  colonial 
period,  71;  controlled  by  poli- 
tics, 8,  29;  control  over,  367; 
county,  60;  defined,  7,  14;  dele- 
gate of  the  sovereign,  317; 
differentiated  from  politics,  6; 
end  of,  229;  expresses  will  of 
the  state,  325;  executes  will  of 
the  state,  324;  of  financial 
affairs,  20;  of  foreign  relations, 
18;  a  function  of  government, 
3 ,  13;  governor  not  head  of 
state,  107,  131;  influences  poli- 
tics, 15;  influenced  by  political 
parties,  12;  of  internal  affairs, 
21;  of  judicial  affairs,  19;  ju- 
dicial control  over,  376,  378; 
legislative  control  over,  377, 
445;  local,  162;  of  military 
affairs,  19;  participation  of 
local  communities  in,  55;  regu- 
lated by  the  legislature,  43 ; 
subjected  to  judicial  control,  22 . 


(5^^  acso  Administrative  law; 
Executive.) 

Administrative  abuses,  power  of 
the  legislature  to  remedy,  445 

Administrative  action,  classified, 
317;  in  conditional  and  uncon- 
ditional statutes,  325;  differen- 
tiated from  administrative  di- 
rections, 316;  methods  and 
forms  of,  316 

Administrative  acts,  judicial  in 
character,  ^^:^',  of  the  execu- 
tive, 50;  special,  331 

Administrative  authorities,  pro- 
cedure to  be  followed  by,  340; 
subjected  to  the  control  of  the 
courts,  355 

Administrative  control,  over  ad- 
ministration, 373;  disciplinary 
power  of,  374;  power  of  super- 
vision of,  375 

Administrative  determinations, 
and  the  constitution,  334; 
when  "due  process  of  law," 
356;  final,  when,  339 

Administrative  function,  14;  of 
the  executive,  67;  territorial 
distribution  of,  55 

Administrative  law,  aims  of,  371 ; 
defined,  i,  17;  distinguished 
from  constitutional  law,  3,  370; 
exists  in  all  highly  developed 
governments,  3 ;  extent  of  the 
study  of,  5;  in  England,  i ;  in- 
terests protected  by,  373;  rules 


469 


470 


INDEX. 


Administrative  law  {Continued) 
of,  3  2 1 ;  scope  of ,  16,371.     (See 
also  Administration.) 
Administrative     officers,     differ- 
entiated from  judicial,   9;  dis- 
ciplinary power  of,  374;  in  na- 
tional government,  106;  powers 
and  duties  of,  18;  in  states,  105, 
131;  supervision,  power  of,  ex- 
ercised    by,     375.     {See     also 
Officers.) 
Administrative  ordinances,  326 
Administrative  organization  not 

hierarchical  in  character,  44 
Administrative     system,     decen- 
tralized, 56;  President  head  of, 
82;  of  states,  132 
Age  as  a  qualification  for  office, 

263 
Agriculture,  department  of,  153 
Appeal,  to  heads  of  departments, 

146;  to  President,  91 
Appointment,  under  civil-service 
rules,    277;  definition  of,    253; 
the  law  of,  253;  a  method  of 
forming  the  official  relation,  231 
Appointment,  power  of:  belongs 
to   the   administration,    38;   in 
colonial  period,  72;  by  council 
in   New  York,    99;   governor's 
power  of,  98,  10 1 ;  of  heads  of 
departments,   37,    134;  legisla- 
ture   may    exercise,    39;    and 
Senate  of  United  States,  112 
Attorney-general       subject       to 

governor,  104 
Aucoc's  distinction  between  exec- 
utive functions,  66 
Australian,  ballot,  effect  of,  251; 
system  of  voting,  238 


B 


Ballot,  effect  of  Australian,  251; 

voting  by,   236 
Boards,  city  government  by,  214; 


county,  184;  county  govern- 
ment by,  216;  system  of  organ- 
izing offices  by,  226;  procedure 
of,  must  conform  to  statutory 
method,  344;  state,  155,  241 

Borough,  development  of,  coun- 
cil, 201;  origin  of,  199 

Bureaucratic  system  of  adminis- 
tration, 228 


Central  administration,  64.  {Sei 
Administration . ) 

Certiorari,  writ  of,  defined,  428. 
(See  Writs.) 

Character  as  a  qualification  for 
office,  263 

Cities,  agents  of  state  administra- 
tion, 209;  change  in  position 
of,  208;  legislative  control  over, 
evil  effect  of,  170;  powers  of, 
enumerated,  60;  public  works 
of,  211;  schools  in,  219;  special 
acts  relating  to,  prohibited, 
174;  term  of  officers  of,  218. 
{See  also  Administration.) 

Citizenship  and  residence  as 
qualifications  for  office,  261 

City  government,  board  system 
of,  214;  board  type  of,  216; 
bureaucracy  in,  229;  council  in, 
loss  of  power  of,  215;  council 
type  of,  216;  mayor  system  of, 
215;  mayor  type  of ,  2 1 7  ;  present 
organization  of,  216.  {See  also 
Local  government.  Municipal 
government.) 

City  schools,   219 

Civil-service,  classification  of, 
269;  commission,  279;  exami- 
nations, 272;  position  of  labor- 
ers under,  laws,  271;  pensions, 
291,  293;  exempted  positions 
in,  270;  promotions  in,  regtda* 
tion  of,  284 


INDEX. 


471 


Commerce  and  labor,  depart- 
ment of,  152 

Compensation,  of  officers,  286; 
may  not  be  altered  during  term 
of  office,  287;  may  not  be  at- 
tached, 288;  civil  pensions,  290; 
claim  for,  how  enforced,  289 

Conduct,  good,  of  officers,  301 

Congress,  administration  con- 
trolled by,  445,  453;  appoint- 
ment, power  of,  exercised  by, 
113;  executive  departments  or- 
ganized by,  123;  and  the  Presi- 
dent, 75,  84,  89 ;  removal,  power 
of,  exercised  by,  76 

Constitution  of  United  States  and 
executive  departments,  122; 
and  power  of  removal,  76 

Constitutional  law,  distinguished 
from  administrative  law,  3 ; 
supplemented  by  administra- 
tive law,  16 

Contract  of  employment,  223 

Control  over  the  administration, 
367.  {See  Administrative  con- 
trol. Judicial  control,  Legisla- 
tive control.) 

Council,  in  the  colonies,  no;  loss 
of  power  by,  in  city  govern- 
ments, 215;  type  of  city  govern- 
ment, 216 

County,  an  administrative  sub- 
division of  the  state,  60;  au- 
thority, types  of,  191 ;  change  in 
administration  of,  185;  a  body 
corporate,  164;  early  American, 
184;  finances  of,  193;  position 
of,  at  present  time,  189;  state 
control  of,  194 

Court  leet,  200 

Court  of  Claims,  50,  388 

Courts,  acts  of  President  may  be 
decreed  void  by,  92;  adminis- 
tration controlled  by  the,  372; 
administrative  authorities,  or- 
dinance   power    of    the,    con- 


trolled by,  329;  may  appoint 
subordinate  officers,  38;  and 
the  civil-service  rule,  85;  con- 
trol of  civil,  over  the  admin- 
istration, 383,  394;  criminal, 
exercise  control  over  the  ad- 
ministration, 409 ;  discretion  of, 
in  issuing  writs,  430;  duties  of 
officers  controlled  by,  296;  ex- 
ecutive controlled  by,  48;  re- 
lation of,  to  governor,  108; 
jurisdiction  of  United  States, 
in  issuing  writs,  437;  juris- 
diction of  higher,  in  issuing 
writs,  427;  special  jurisdic- 
tion of  lower,  in  issuing  writs, 
441,  local  affairs  and  the,  176; 
officers,  suits  against,  and 
the,  398;  ordinance  power  of 
heads  of  departments  and  the, 
143,  149;  ordinance  power  of 
the  President  and  the,  85; 
President  not  subject  to  pro- 
cess of  the,  91;  primary  elec- 
tions controlled  by,  247,  251; 
may  remove  from  office,  313; 
voting,  method  of,  and  the, 
237.  (5e^  a/50  Judicial  control. 
Criminal  courts.) 

Criminal  courts,  control  of,  over 
administration,  409;  power  of, 
to  punish  officers,  411 

Criminal  liability  of  officers,  298 

Criminal  prosecutions,  American, 
based  on  English,  412 

Crown,  control  of,  over  the  ad- 
ministration, 425 


Damages,  suits  for,  against  offi- 
cers, 396 

Death  terminates  the  official  rela- 
tion, 305 

De  facto  officers,  257,  288,  306 

Denio  on  local  corporations,  165 


472 


INDEX. 


Departments,   see   Executive  de- 
partments 
Dicey,  view  of,  criticised,  2 
Dillon  on  local  corporations,  169 
Diplomatic  power,  in  colonial  pe- 
riod, 70;  and  United  States  Sen- 
ate, 113 
Direction,   power  of,  in  adminis- 
tration, 375 
Disciplinary  power,  303  ;  a  method 
of  control  over  administration, 

3  74 

Distress  warrant,  sale  of  property 
under,  356 

Dorr's  Rebellion,  93 

"Due  process  of  law,"  what  is, 
334  ;  sale  of  property  under 
distress  warrant  is,  356 

Duties  of  officers:  good  conduct, 
301;  ministerial  and  discre- 
tionary, 295;  of  a  moral  char- 
acter, 299;  with  a  penal  sanc- 
tion, 298;  prompt  performance 
of,  300;  responsibility  for  vio- 
lation of,  302 


E 


Edvication,  office  of,  152  ;  in  cities, 
209 

Election,  a  method  of  forming  the 
official  relation,  231 ;  officers  of, 
are  ministerial,  240 

Elections,  judges  of,  240;  the  law 
of,  234;  legislature  may  regu- 
late, 234;  must  be  regular,  239; 
regulations  concerning,  direc- 
tory, 239 

Employments,  distinguished  from 
offices,  223  ;  rules  of  private  law 
apply  to  government,  223 

England,  history  of  municipality 
in,  to  the  eighteenth  century, 
199;  rural  administration  in, 
during  the  eighteenth  century, 
179;  method  of  v^oting  in,  236 


English  law,  position  of  officers  in, 
396;  sovereign  in,  can  do  no 
wrong,  387 

Equitable  remedies  against  ad- 
ministrative action,  436 

Examinations,  civil-service,  273 

Execution  of  the  law  by  judicial 
process,  394 

Execution  of  the  will  of  the  state, 
346 ;  means  of,  347  ;  methods  of, 
351;  by  payment  of  sum  of 
money,  349;  by  application  of 
physical  force,  350 

Executive,  administrative  acts  of, 
50;  authority  of,  limited  by  the 
constitution,  39;  conffict  with 
legislature,  52;  contractual  acts 
of,  50;  control  of,  by  legislature, 
48;  courts  will  not  issue  writs 
to  chief,  434 ;  disciplinary  power 
of,  299;  distinction  between 
functions  of,  66;  legislative  acts 
of,  49;  legislative  functions  of 
the,  29  ;  relation  of,  to  the  legis- 
lature, 43;  political  parties  con- 
trol the,  53;  position  of,  51; 
power  of,  64 ;  relation  of,  to 
heads  of  departments,  130;  re- 
lation of,  to  other  authorities, 
43;  subjected  to  the  control  of 
the  courts,  48.  {See  also  Exec- 
utive power.  President,  Gov- 
ernor.) 

Executive  authority,  distinction 
between  power  of  state  and  na- 
tional, 104;  organization  of,  83  ; 
relation  of,  to  executive  depart- 
ments, 129.     {See  Executive.) 

Executive  council,  in  national 
government,  in;  Senate  as  an, 
no;  in  state  governments,  116 

Executive  departments,  of  cities, 
213;  distributing  business 
among,  119;  heads  of,  not  liable 
in  damages,  399;  local  subordi- 
nates of,  160;  organizing,  meth- 


INDEX. 


473 


ods  of,  119;  power  of  organiza- 
tion, 122;  state  and  national, 
compared,  127,  150,  154 

Executive  functions  exercised  by 
the  legislature,  28 

Executive  power,  American  con- 
ception of,  in  eighteenth  cen- 
tury, 70;  difficulty  of  defining, 
65 ;  in  governor,  94 ;  meaning  of, 
in  United  States  constitution, 
73;  and  political  scientists,  68; 
possessed  by  President,  83; 
vested  by  constitution  in  Presi- 
dent, 73;  power  of  removal  a 
part  of,  76;  in  early  state  gov- 
ernments, 70;  in  United  States 
government,  69.  {See  also  Ex- 
ecutive, Governor,  President.) 

Expenses,  legislative  control  over 
government,  451 

Expiration  of  term  of  office,  305 

Expression  of  the  will  of  the  state, 
322 

Extraordinary  judicial  remedies, 
418;  history  of,  in  England,  420; 
history  of,  in  United  States,  426 


Finances,  legislative  control  of 
the,  449 

Financial  affairs,  administration 
of,   20 

Firma  burgi,  199 

Foreign  relations  in  colonial  pe- 
riod, 70 


'Government,  administrative  law 
in,  I ;  character  of,  not  revealed 
by  study  of  governmental  or- 
ganization alone,  3;  control  of 
parties,    245;    departments    of 


the,  independent,  34,  end  of 
popular,  229;  rega-ded  as  a 
juristic  person,  378,  383;  sep- 
aration of  powers  of,  32;  suits 
by  or  against  the,  383 ;  suits  in- 
directly against  the,  392 
Governmental  authority,  no  one 

independent,  43 
Governmental     departments,     in 
Europe,  121;  heads  of,  and  the 
Senate,  115;  and  the  President, 
79,  90;  state  and  national,  com- 
pared, 127.     (5e^  Executive  de- 
partments.) 
Governmental  organization,  often 
fixed   by  extra-legal   practices, 
4 ;  does  not  reveal  character  of 
government,  3 
Governmental  system,  executive 

in,  5 1 ;  harmony  in,  65 
Governor,  administrative  power 
of  the,  98;  administrative  ser- 
vices, power  of,  over,  104;  ap- 
pointing power  of,  38,  98;  in 
colonial  period,  70;  commander- 
in-chief,  96;  compared  with 
President,  106;  direction,  power 
of,  possessed  by,  104;  chief 
executive  of  state,  96;  not  head 
of  administration,  131;  im- 
portance of,  increased,  157; 
power  of,  over  legislature,  47, 
97;  not  liable  in  damages,  399; 
ordinance  power  of,  105;  par- 
doning power  of,  197;  a  po- 
litical officer,  94,  107;  general 
position  of,  106;  powers  of, 
enumerated,  95;  relation  of,  to 
council  in  colonies,  no;  reme- 
dies against  action  of,  108;  re- 
moval, power  of,  possessed  by, 
I  o  I ;  and  state  senate  as  an 
executive  council,  116;  vacan- 
cies filled  by,  100;  veto  power 
of,  97.  {See  also  Executive, 
Executive  power.) 


474 


INDEX. 


H 

Habeas  corpus,  act,  430;  when 
issued,  432;  writ  of,  428 

Heads  of  departments,  appeals  to, 
146;  power  of  appointment  of, 
134;  in  cities,  215;  power  of 
direction  and  control,  136;  re- 
lation of,  to  chief  executive, 
129;  not  liable  in  damages,  399; 
control  of  local  officers  by 
state,  138;  ordinance  power  of, 
143;  powers  and  duties  of,  134; 
remedies  against  action  of,  149; 
power  of  removal  possessed  by, 
135;  special  acts  of,  145;  in 
states,  129;  term  and  tenure  of, 
129.  {See  also  Executive  de- 
partments.) 

I 

Impeachment,  causes  of,  460; 
grounds  for,  originally  459; 
legislature  exercises  power  of, 
315;  method  of,  in  United 
States,  460;  origin  of,  458;  in 
state  governments,  462 

Incompatibility  vacates  an  office, 
310 

Individuals,  prosecutions  of,  con- 
trol of  the  courts  over,  409; 
suits  by  the  government  against, 
384;  rights  of,  protected  by  ex- 
traordinary legal  remedies,  418 

Injunction,  scope  of,  436;  bill  of, 
410,  422,  428.      {See  Writs.) 

Interior,  department  of,  151. 
{See  Executive  departments.) 

Internal  affairs,  administration  of, 
2 1 ;  in  colonial  period,  7 1 

International  law,  position  of 
state  in,  18 


Jackson,  President,  and  United 
States  Bank,  80;  relation  to  the 
"spoils  system,"  265 


Judges,  of  election,  240;  inde- 
pendent, 11;  liability  of,  400; 
removable  only  by  legislature, 
20 

Judgment  against  local  corpora- 
tions, how  enforced,  386 

Judicial  affairs,  administration  of, 

19 
Judicial  control,  analysis  of,  378, 
381;      extraordinary      judicial 
remedies,   418;  special  judicial 

remedies,    380 

Judicial  institutions,  use  of  ordi- 
nary, as  a  method  of  control 
over  the  administration,  378 

Judicial  officers,  control  of,  over 
administrative  officers,  22;  dif- 
ferentiated from  administrative 
officers,  9;  largely  independent, 
II.     {See  Officers). 

Judicial  power  often  takes  part  in 
making  law,  26 

Judicial  process  as  a  method  of 
executing  the  will  of  the  state, 

352,394 

Jurisdiction,  of  higher  courts  in 
issuing  writs,  427;  of  lower 
courts  in  issuing  writs,  440; 
of  United  States  courts  in  issu- 
ing writs,  437 

Justice  of  the  peace,  180,  201,  424, 
425 ;  English  and  American,  187 

K 

King's  Bench,  Court  of,  421 


Laborers  in  civil-service,  271 

Legislation,  special,  may  not  be 
passed  by  the  legislature  as  to 
cities,  172 

Legislative  acts  of  the  executive, 
49.      {See  Ordinances.) 

Legislative  control,  over  admin- 
istration,    377,     442;     of     the 


INDEX. 


475 


finances,  449;  history  of,  442; 
impeachment  a  method  of, 
458.     {See  Legislature.) 

Legislative  functions,  may  be  ad- 
ministrative, 45 ;  exercised  by 
executive  authority,  29 

Legislative  power,  defined,  28; 
limited  by  executive,  47 

Legislature,  administrative  abuses 
remedied  by,  445;  appointing 
power  of,  39,  253;  special  acts 
of,  with  regard  to  cities,  174; 
elections  may  be  regulated  by, 
234 ;  conflict  with  executive,  5 1 ; 
executive  controlled  by,  48; 
executive  functions  of,  28;  in 
colonial  period,  controlled 
finances,  72;  impeachment, 
power  of,  462;  control  over 
judges,  20;  local  authorities 
derive  power  from,  36;  inter- 
ference of,  in  local  government, 
60,  168,  194;  necessity  for  con- 
trol over  administration  by, 
372;  control  of,  over  nuisances, 
362;  may  terminate  the  official 
relation,  315;  party  nomina- 
tions may  be  regulated  by,  245  ; 
penalties  imposed  by,  347 ; 
powers  of,  may  be  delegated, 
41 ;  qualifications  for  office  pro- 
vided by,  260;  supreme,  170. 
{See  also  Legislative  control.) 

Local  administration,  administra- 
tive law  treats  of,  18;  develop- 
ment of,  in  United  States,  182; 
in  England  to  eighteenth  cen- 
tury, 179;  three  original  forms 
of,  182;  history  of,  in  United 
States,  179;  how  far  independ- 
ent, 138;  control  of,  by  politics, 
1 2 ;  in  United  States  at  present 
time,  189;  villages  in,  219.  {See 
also  Municipal  government. 
Administ  rat  ion . ) 

Local  affairs,  what  are,  176 


Local  authorities,  legislature 
may  confer  powers  on,  37  ;  sub- 
ject to  legislative  control,  61 

Local  communities,  participation 
of,  in  administration,  55 

Local  corporations,  162;  agents  of 
state,  J 67,  170;  English  rule  of, 
adopted  in  United  States,  163; 
judgments  against,  how  en- 
forced, 386;  powers  of,  enu- 
merated, 168;  subjected  to  the 
control  of  the  legislature,  169; 
suits  against,  385 

Local  governments,  represent  de- 
centralized administrative  sys- 
tem, 56;  principle  of  the  sepa- 
ration of  powers  does  not  apply 
in,  35;  sphere  of,  58 

Local  officers,  in  colonial  period, 
71;  appointment  of,  100;  con- 
trol of,  by  heads  of  depart- 
ments, 138;  not  removable  by 
governor,  103.     {See  Officers.) 

M 

Mandamus,  writ  of,  meaning  of, 
422,  428;  when  issued,  432. 
{See  Writs.) 

Mayor,  system  of  city  govern- 
ment, 215;  type  of  city  govern- 
ment, 217 

Methods  and  forms  of  administra- 
tive action,  316 

Military  affairs,  administration  of, 

19 

Militia  under  control  of  Presi- 
dent, 96 

Minorities,  representation  of,  242 

Montesquieu,  theory  of  the  sepa- 
ration of  powers,  24;  theory 
criticised,  25;  theory  adopted 
in  United  States,  31 

Moral  character,  duties  of  a,  of 
officers,  299 

Municipal  corporations,  may  be 
classified,    174;    period    of    in- 


476 


INDEX. 


corporation  of,  in  England, 
202.  {See  Local  corporations, 
Municipal  organization.) 

Municipal  organization,  199; 
board  system  of,  214;  origin  of 
borough,  199;  change  in,  212; 
loss  of  power  by  council  in,  215  ; 
based  on  English  system,  205; 
history  of,  in  America,  205; 
history  of  English  municipality 
to  eighteenth  century,  199; 
mayor  system  of,  2 1 5 ;  at  the 
present  time,  216;  the  principle 
of  the  separation  of  powers  in, 
212 

Municipality,  in  England  to  the 
eighteenth  century,  199;  his- 
tory of  American,  205;  original 
American,  205.  (See  Cities, 
Municipal  organization.) 

N 


National  administration,  see  Ad- 
ministration. 

National  government,  executive 
departments  of,  150;  suits 
against,  387.  {See  Govern- 
ment, Administration.) 

Negligence,  liability  of  officers  for, 
402 

New  England,  the  town  in,  182; 
the  county  in,  189 

New  York,  voting  by  ballot  origi- 
nated in,  236;  civil-service  law 
in,  268;  original  position  of 
governor  in,  98;  the  town  in, 
186 

Nominations,  system  of  direct, 
249;  evil  results  of,  by  parties, 
243;  government  control  of 
party,  245  ;  the  law  of,  243  ;  and 
senatorial  courtesy,   114 

Nuisance,  judicial  process  not  re- 
quired to  abate,  355,  359; 
means  of  abating,  350,  356 


O 

Obedience  to  orders  by  officers, 
300 

Office,  may  be  abolished  by  legis- 
lature, 315;  acceptance  of,  255; 
appointment  to,  40,  253;  citi- 
zenship and  residence  as  quali- 
fications for,  261;  death  of  in- 
cumbent makes  vacant,  305; 
definition  of,  222 ;  distinguished 
from  employment,  223;  expira- 
tion of  term  of,  305;  term  of,  of 
heads  of  departments,  129; 
honorary  and  professional,  227; 
incompatible  and  forbidden, 
differentiated,  311;  loss  of 
qualifications  entails  loss  of, 
309;  offices  and  officers,  222; 
method  of  organizing,  225; 
power  to  hold,  how  given,  260; 
prompt  performance  of  duties 
of,  300;  qualifications  for,  260; 
removal  from,  311;  resignation 
from,  307;  right  to,    282 

Officers,  term  of  city,  218;  com- 
pensation of,  not  a  contractual 
right,  286;  crimes  of,  298;  de 
facto,  257,  288;  definition  of, 
222;  original  discretion  of  ap- 
pointing, 265;  duties  of,  295, 
299;  election,  240;  of  executive 
departments  are  administra- 
tive, 119;  have  no  authority  to 
act  after  expiration  of  term, 
305;  good  conduct  as  a  duty, 
301 ;  liability  of,  for  acts  of  sub- 
ordinates, 407  ;  liability  of  min- 
isterial, 401;  obedience  of,  to 
orders,  300;  may  engage  in 
other  occupations,  301;  offices 
and,  222;  pensions  of,  290;  pro- 
motions of,  285;  prompt  per- 
formance of  duty,  300;  removal 
of,  311;  resignation  of,  when 
eflFective,  307  ;  responsibility  for 
violation  of   duty,  302;  rights 


INDEX. 


477 


of,  282;  may  not  sue  govern- 
ment for  compensation,  289; 
when  may  be  sued,  393 ;  smts 
for  damages  against,  396 ;  town, 
196;  writs  against,  440 

Official  authority,  how  organi/:ed, 
225 

Official  relation,  not  contractual, 
287;  definition  of,  222;  forma- 
tion of,  231;  a  relation  of  the 
public  law,  222;  termination 
of,  305.     {See  Office,  Officers.) 

Ordinance  power,  of  administra- 
tive authorities,  326;  method  of 
control  of,  328;  usually  dele- 
gated, 327;  of  heads  of  depart- 
ments, 143;  governor's,  105; 
possessed  by  President,  74,  84, 
326 

Ordinances,  administrative,  326; 
method  of  publication,  330 


Pardoning  power  exercised  by  the 
governor,  97 

Parliamentary  control,  over  ad- 
ministration, 443 ;  over  im- 
peachments, 460.  {See  Legisla- 
tive control.) 

Parties,  see  Political  parties. 

Party  system  influence  on  the 
constitution,  5 

Penalties,  purpose  of  attaching, 
to  administrative  laws,  322; 
imposition  of,  to  enforce  execu- 
tion of  the  will  of  the  state,  346 

Pensions,  civil,  of  officers,  290; 
claim  to,  not  contractual,  291 

Physical  force,  application  of,  to 
execute  law,  350 

Police  commissioners  appointed 
by  governor,   100 

Police  laws,  21 

Political  capacity,  how  developed, 
229 


Political  function  of  the  execu- 
tive, 67 

Political  parties,  control  over  ex- 
ecutive, 53,  67;  evil  results  of 
nominations  by,  243 ;  govern- 
ment control  of,  245 ;  influence 
of,  on  administration,  12,  45, 
233;  organization  of,  must  be 
permanent,  52;  originally  vol- 
untary organizations,  243;  and 
voting,  237 

Politics,  controls  administration, 
8,  29,  45;  differentiated  from 
administration,  6;  too  great 
control  of,  over  administration 
harmful,  13  ;  harmony  between, 
and  administration  necessary, 
65 ;  in  non-political  side  of  ad- 
ministration, 68 

Popular  election  of  officers,  232 

Postmaster-General  and  the 
President,  79 

Power  of  removal,  see  Removal. 

President  of  United  States,  head 
of  administration,  82;  adminis- 
trative power  of,  84;  appeals 
may  not  be  entertained  by,  91 ; 
commander-in-chief,  87 ;  not 
liable  in  damages,  398;  has 
power  of  direction,  77;  execu- 
tive powers  of,  83 ;  and  gover- 
nor, 46,  106;  and  heads  of 
departments,  81,  122,  130;  im- 
peachment of ,  460 ;  not  subject 
to  judicialprocess,  91,  435  ;  legis- 
lative power  may  not  be  dele- 
gated to,  88 ;  change  in  position 
of,  76;  original  position  of,  73; 
powers  of,  conferred  by  statute, 
89;  proclamations  of,  87  ;  reme- 
dies against  action  of ,  9 1 ;  power 
of  removal  possessed  by,  41,  76 ; 
and  senate,  112;  special  acts  of, 
89;  may  determine  validity  of 
state  government,  93.  {See 
also  Executive.) 


478 


INDEX. 


Primary  elections  may  be  regu- 
lated by  state  government,  246 
Private  rights,  see  Rights. 
Proclamations   of   the    President, 

87 
Prohibition,  writ  of,  428.        (See 

Writs,  Injunction.) 
Promotion  in  civil-service,  284 
Property,  private,  when,  may  be 

summarily  destroyed,  364 
Prosecution,  method  of  criminal, 

411 
Prosecutor,  public,  412 
Public  accountability,  20 
Public  law,  the  official  relation,  a 
relation  of,  222  ;  principle  of  the 
separation   of  powers   adopted 
in  American,   12,  31;  remedies 
for  deciding  questions  of,  23 
Public  opinion  controls  apportion- 
ment of  work  of  government, 
56 

Q 

Qualifications  for  office,  260;  age, 
262;  character,  263;  citizenship 
and  residence,  261;  intellectual 
capacity,  264;  the  legislature 
may  provide,  260;  loss  of,  ter- 
minates the  official  relation, 
309;  sex,  263;  usual,  261 

Quo  warranto,  writ  of,  428;  abol- 
ished in  New  York,  430.  (See 
Writs.) 

R 

Receipts,  legislative  control  over 
government,  449 

Remedies,  distinction  between 
legal  and  equitable,  436;  ex- 
traordinary judicial,  418; 
against  action  of  the  governor, 
108;  history  of  extraordinary, 
in  England,  420;  against  action 
of    the    President,    91;    special 


judicial,  380;  special,  of  higher 
courts,  427 
Removal  from  office,  311;  causes 
for,  314;  control  of  courts  over, 

313 
Removal,  power  of,  and  admin- 
istrative officers,  374;  and  con- 
stitution of  United  States,  76; 
incident   of  power  to  appoint, 
312;   not   a   part   of   executive 
power,  3 1 1 ;  of  heads  of  depart- 
ments, 135  ;  vested  in  governor, 
loi;  in  President,  76 
Representation,  methods  of,  242 
Resignation,     from     office,     307 ; 
what   is,    308;   when   effective, 

307 
Rights,  private,  control  over  ad- 
ministration necessary  for  the 
protection  of,  368,  372;  extra- 
ordinary judicial  remedies  for 
the  protection  of,  418 


Salary,  see  Compensation. 

Selectmen  in  early  American 
town,  187 

Senate,  as  an  executive  council, 
no;  tries  impeachments,  460; 
in  national  government,  in; 
power  of,  over  President,  113; 
secret  sessions  of,  112;  in  state 
governments,  116 

Senatorial  courtesy,  114 

Separation  of  powers,  applied  to 
county  government,  192;  in 
England,  25;  demands  that  ex- 
ecutive be  independent  of  legis- 
lature, 64;  does  not  apply  to 
local  governments,  35  ;  meaning 
of,  as  a  legal  rule  in  United 
States,  33;  Montesquieu's  the- 
ory of,  24,  26;  application  of, 
to  municipal  organization,  212; 
a  part  of  American  public  law, 


INDEX. 


479 


12,  28,  31;  in  United  States,  31 

Sheriff,  in  colonial  period,  184;  in 
England  in  eighteenth  century, 
179 

Sovereign  in  English  law  can  do 
no  wrong,  387 

Spoils  system  and  President  Jack- 
son, 265 

State,  department  of,  151.  (See 
Executive  departments.) 

State  governments,  control  of, 
over  counties,  194;  executive 
departments  in,  154;  executive 
power  in  early,  70;  based  on 
federal  idea,  55  ;  position  of,  18  ; 
power  of  senate  in,  116;  suits 
against,  390;  validity  of,  deter- 
mined by  President,  93 

State  will,  conditional  statutes  do 
not  completely  express,  325;  in 
England,  9;  execution  of,  346; 
expression  of,  322;  must  be  ex- 
pressed and  executed,  7;  in- 
fluenced by  administration,  54; 
means  of  executing,  346;  meth- 
ods of  executing,  351;  execution 
of,  by  payment  of  sum  of 
money,  349 

Statutes,  conditional,  325;  ad- 
ministration in  enforcing,  par- 
ticipates in  expressing  will  of 
the  state,  325 

Statutes,  unconditional,  become 
less  effective  as  civilization  be- 
comes more  com.plex,  324;  ju- 
dicial process  in  executing,  352  ; 
express  the  will  of  the  state,  322 
Suits,  by  or  against  government, 
383 ;  indirectly  against  the  gov- 
ernment, 392;  by  government 
against  individuals,  384 ;  against 
local  corporations,  385;  against 
national  government,  386; 
against  state  governments,  390 
Suspension,  power  of,  in  adminis- 
tration,   375;    exercise    of,    by 


governor,  103;  not  included  io 
power  to  remove,  314 


Tax,  levying  a,  68 

Taxation,  origin  of  law  of,  20 

Tenure-of-Office  Act,  76 

Term  of  office,  expiration  of,  305 

Town,  a  corporation,  164;  early 
American,  186;  in  New  Eng- 
land, 182;  officers  of,  196;  posi- 
tion of,  at  present  time,  195; 
in  the  south,  183;  state  control 
of,  197  ;  town-meeting,  196;  and 
village  compared,  220 

Township,  see  Towns. 

Tucker  Act,  389 


Vacancies,  in  civil-service,  277; 
filled  by  governor,  100 

Veto  power  of  the  governor,  97, 
108 

Villages,  general  position  of,  219; 
organization  of,  221 

Virginia,  state  of,  may  be  sued  in 
ordinary  courts,  391 

Vote,  right  to,  determined  by 
state  constitution,  235;  legisla- 
ture may  regulate  right  to,  235 

Voting,  Australian  system  of,  238; 
by  ballot  originated  in  New 
York,  236;  by  ballot  must  be 
secret,  237;  cumulative  and 
limited,  242;  method  of,  236 

W 

War  department,  126.  {See  Ex- 
ecutive departments.) 

William  the  Conqueror  and  local 
government  in  England,  162 


48o 


INDEX. 


Wil-  of  the  state,  see  State  will. 
Women,    eligibility    of,    to    hold 

office,  263 
Writs,     jurisdiction      of     United 

States   courts   in   issuing,   437; 


present   jurisdiction   of   higher  440 


courts  in  issuing,  427;  perorga- 
tive,  421,  429;  purpose  of ,  431; 
questions  considered  on,  432; 
special  and  statutory  jurisdic- 
tion of  lower  coiirts  in  issuing 


I 


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CENTRAL  UNIVERSITY  LIBRARY 
l^-'versuy  of  California,  San  Diego 

DATE  DUE 


VCSD  Libr. 


